VERMA, J. - (1.) SECTION 18 of the Rajasthan Non-Government Education Institutions Act, 1989 (here-in-after referred to as the Act) and the rules made thereunder provides that no employee of a recognised institution shall be removed, dismissed or reduced in rank unless he has been given by the management a reasonable opportunity of being heard against the action proposed to be taken. A further provision has been made to the effect that no final order in this regard shall be passed unless prior approval of the Director of Education or an officer authorised by him in this behalf has been obtained. SECTION 18 reads as under: 18. Removal, dismissal or reduction in rank of employee- Subject to any rule that may be made in this behalf, no employee of a recognised institution shall be removed, dismissed or reduced in rank unless he has been given by the management a reasonable opportunity of being heard against the action proposed to be taken. Provided that no final order in this regard shall be passed unless prior approval of the Director of Education or an officer authorised by him in this behalf has been obtained.
(2.) RULE 39 (2) (g) of the rules do provide that the Managing Committee is duty bound to forward to the Director of Education or an officer authorised by him in this regard, the records of the enquiry together with a copy of notice given under sub-clause (f) (ii) of RULE 39 for approval and on receipt of such approval, the Managing Committee is authorised to issue appropriate order of removal or dismissal as the case may be and forward a copy of such order to the employee concerned and also to the Director of Education. Relevant RULE 39 (2) (g) and (h) are reproduced as under:- "39. Removal or Dismissal from Service- (1)-- (2) An employee, other than the employee referred to in sub-rule (1), may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service. But the following procedure shall be adopted for the removal or dismissal of an employee:- (g) In every case, the records of the enquiry together with a copy of notice given under sub-clause (f) (ii) above and the representation made in response to such notice if any, shall be forwarded by the managing committee to the Director of Education or an officer authorised by him in this behalf, for approval. (h) On receipt of the approval as mentioned in sub-clause (g) above, the managing committee may issue appropriate order of removal or dismissal as the case may be and forward a copy of such order to the employee concerned and also to the Director of Education or the officer authorised by him in this behalf:' The respondent No. 4 Amarpal Sharma, an employee of the petitioner institution, was proceeded with departmental action and was dismissed from service on 24. 8. 1998. The order of dismissal was challenged by the respondent employee before the Rajasthan Non-Government Education Institution Tribunal (here-in- after referred to as the Tribunal), respondent No. 5. One of the ground of challenge was that no approval as was required under Section 13 r/w Rule 39 (2) (g) & (g) was obtained by the petitioner managing committee. The Tribunal vide its order dated 9. 2. 2001 (Annexure-11) in Appeal No. 453/98 had accepted the appeal of the respondent employee and had setaside the order of dismissal from service. Being aggrieved against the said order, the present writ petition has been filed by the petitioner. It is the case of the petitioner that on receipt of the enquiry reports and before passing the order of dismissal dated 24. 8. 1998, the managing committee had informed the District Education Officer (Secondary) attaching therein the copy of the charge-sheet, statement of allegation, reply submitted by respondent No. 4 and also other relevant papers for seeking approval on 19. 5. 1998 and 21. 6. 1998 as per Annexure-6. It is stated that reminders were also sent right upto September 1998 vide Annexure 6, 7, 8 and 9, but no approval was forthcoming. Counsel for the petitioners submits that the Government vide a circular dated 9. 7. 1998 had issued instructions under Rule 39 by invoking the powers under Rule 39 to the effect that if the approval as being sought is not received within 30 days, in that situation, it is deemed to have been approved and, therefore, under such circular, for the reason that no intimation of approval was sent by the Director to the petitioner within a period of 30 days of communication sent for approval, the petitioner was justified in dismissing the employee of its institution, i. e. respondent employee. As none of the parties had any firm information to the effect whether this circular was ever notified or not, assistance was sought from the Additional Advocate General to apprise to this court after obtaining instructions from the Department. Mr. Mathur had informed the Court orally that on the information being received, no such circular was of limiting the approval time to be of 30 days was ever notified and it was only an executive instruction.
(3.) PER contra, learned counsel for the respondent states that even if this circular is notified, it shall have no binding effect at all shall lead to very serious consequence. It is the submission of the learned counsel for the respondent that such circular or notification has no meaning in view of clear and unambigous provision of Section 18 r/w Rule 39 of the Act and the rules. It is not disputed that Section 18 of the Act does not lay down any limitation of sending of the approval or any deeming clause of the approval within any specified period. Rules can only be framed to facilities the procedure. If the statute itself does not contain the limitation, no limitation can be prescribed under the rules. But in the present case, rule 39 (g) and (h) does not prescribe any such limitation of 30 days of deemed approval. Until and unless the provisions of the Act itself is amended, the state authorities had no jurisdiction to pass any executive instructions or issue any circular to the effect that if the approval is not received within 30 days; it would amount to deemed approval. After hearing learned counsel for the petitioner, I do not find any merit in the writ petition and the same deserves dismiss and the order of the Tribunal is not likely to be interfered with. The reasons given by the Tribunal are sound legal reasons for setting aside the order of termination. The writ petition is dismissed at admission stage. No order as to costs. . ;