- (1.) AS a consequent to regular process of selection as per the Rajasthan Non-Government Educational Institutions Act, 1989 (hereinafter referred to as "the Act of 1989") and the Rajasthan Non-Government Educational Institutions (Recognition, Grant-in-Aid and Service Conditions Etc.) Rules, 1993 (hereinafter referred to as "the Rules of 1993"), appointment to the post of Senior Teacher (Science) was accorded to the petitioner under an order dated 1.10.1999, passed by the Secretary, Shri Jain Ratan Senior Secondary School, Bhopalgarh District Jodhpur (hereinafter referred to as "the Employer Institution").
(2.) THOUGH the order of appointment dated 1.10.1999 in quite unambiguous terms mentions about approval obtained from the competent authority i.e. the District Education Officer vide letter dated 28.9.2009 in accordance with Rule 29 of the Rules of 1993 before giving appointment, the Secretary of the managing committee of the Employer Institution by a letter dated 27.1.2010 informed the petitioner that his appointment under the order dated 1.10.1999 was "null and void ab-initio" being not having necessary approval from the competent authority i.e. the Deputy Director, Department of Education. An explanation from the petitioner in this regard was also called for and the petitioner vide letter dated 15.2.2010 conveyed that the appointment was given to him as a consequent to regular process of selection and necessary approval was taken by the District Education Officer, thus, the same cannot be termed and treated as void ab-initio. It was also conveyed that the entire process was conducted by the Employer Institution wherein the petitioner was having no say, as such if the approval was taken by the District Education Officer instead of Deputy Director, then the liability for any wrong, if exists, rests on the Employer Institution. An explanation was further sought by the Employer Institution and necessary response to that was also given by the petitioner. The Employer Institution ultimately by order dated 30.4.2011 declared the order dated 1.10.1999 "null and void ab-initio" and off the petitioner from its roll of employees. Being aggrieved by the same, this petition for writ is preferred. Before proceeding further, suffice to mention here that this Court on 19.5.2011, while issuing notice to show cause to the respondents, stayed effect and operation of the order dated 30.4.2011 with a direction to the respondents to allow the petitioner to work on the post he was appointed in the year 1999. Subsequent thereto a second stay petition was preferred with assertion that in view of the provisions of the Rajasthan Voluntary Rural Education Service Rules, 2010 (hereinafter referred to as "the Rules of 2010") the petitioner was supposed to be relieved to join State Government services but the Employer Institution was not relieving him to report before the competent authority under the Rules of 2010. The second stay petition came to be accepted on 6.7.2011 with a direction to the Employer Institution to relieve the petitioner immediately for reporting before the Deputy Director, Secondary Education, Jodhpur. In pursuant to the order aforesaid the petitioner was relieved from the Employer Institution and his services have now already been absorbed by the Government in accordance with the Rules of 2010. It is submitted by counsel for the petitioner that the last pay certificate of the petitioner has yet not been sent to the Department of Education by the Employer Institution, therefore, despite absorption no payment of salary has been made to him so far. The fact about non-remission of last pay certificate has been admitted by counsel for the Employer Institution with submission that the petitioner's absorption in Government service as per the Rules of 2010 is subject to final decision of this petition for writ and if this Court rejects this petition, then the petitioner shall not at all be entitled for getting absorption in the service created under the Rules of 2010. Having considered the facts noticed above, I deem it appropriate to consider and dispose of this petition for writ at this stage. Learned counsel for the parties are also having no objection for that. While giving challenge to the order dated 30.4.2011 the submission of counsel for the petitioner is that the Employer Institution accorded appointment to the petitioner much back in the year 1999 after adhering complete procedure prescribed under the Rules, as such no reason exists after a lapse of more than 12 years to discontinue the petitioner from service purely on a technical ground. It is asserted that the selection committee that interviewed the petitioner in the year 1999 was having a representative of the State Government as prescribed under the Rules and the entire process was quite fair and in accordance with the Rules. Necessary approval from the competent authority as required was to be taken by the Employer Institution and if some wrong exists therein then the petitioner cannot be held liable for the same. A reply to the writ petition has been filed on behalf of the Employer Institution reiterating that the competent authority as per the Act of 1989 and the Rules of 1999 for according necessary approval for appointment of the petitioner was Deputy Director, Secondary Education, but the approval was accorded by the District Education Officer, therefore, the appointment is bad from its inception. As per the reply filed on behalf of the Deputy Director, Secondary Education and the District Education Officer, Jodhpur, the appointment was extended to the petitioner according to the procedure prescribed under the Rules of 1993 and necessary approval was also availed from the competent authority. It is also stated that the appointment order dated 1.10.1999 was also forwarded to the Department of Education and necessary steps thereafter were taken in accordance with the Rules of 1993. Heard counsel for the parties.
(3.) THE question requires adjudication in this petition for writ is that whether the Employer Institution was right in declaring the order of appointment dated 1.10.1999 "null and void ab-initio" on the count that the approval was taken by the District Education Officer instead of the Deputy Director, Education before giving appointment to the petitioner? Under the Act of 1989 as per Section 17, recruitment of employees in a recognised institution shall be made either after open advertisement in a local daily newspaper or from amongst the candidates sponsored by the employment exchange in the manner as may be prescribed. The manner for recruitment is prescribed under the Rules of 1993. As per Rule 26 of the Rules of 1993, recruitment of employees in a recognised institution shall be made on merit, either after open advertisement in a local daily news paper having a wide circulation or from amongst the candidates sponsored by the employment exchange. The qualification for appointment on the post concerned under the Rules of 1993 is required to be prescribed by the State Government. As per clause (d) of Rule 26 of the Rules of 1993, the selection committee shall consists of two representatives of the Managing Committee, Head of the concerned institution and one officer nominated by the Director of Education. The nominee of the Director of Education as a member of the selection committee should be as per clause (e) of Rule 26 aforesaid. As per Rule 27 of the Rules of 1993, the Managing Committee of the recognised institution shall, within a fortnight of selection, forward the list of selected candidates, with its recommendations, alongwith information in the proforma prescribed to the competent authority as specified in Appendix-X for its approval. As per Rule 28 of the Rules of 1993, the competent authority may after due consideration either approve the recommendations of the Managing Committee or reject the same for reasons to be recorded in writing. After obtaining approval of the competent authority the Managing Committee may make necessary appointment as prescribed under Rules 29 of the Rules of 1993. As per clause (e) of Section 2 of the Act of 1989, the "Competent Authority" means any officer or authority authorised by the State Government, by notification, to perform the functions of the competent authority under the Act of 1989 for such area or in relation to such class of recognised Non- Government educational institution as may be specified in the notification. As per Rule 2(f) of the Rules of 1993, "COMPETENT AUTHORITY" means any officer or authority, authorised by the State Government, by notification, to perform the functions of the competent authority under the Rules of 1993 for such area or in relation to such class of recognised Non- Government educational institutions as may be specified in the notification. ;