V.K. Bali, J. - (1.) :- Managing Committee of Gandhi Shikshan Samiti (appellant) after finding that respondent Smt. Anita Joshi was eligible, gave her regular appointment on 3.8.1996. After almost eight years that Smt. Anita Joshi had continued to hold the post, she received a notice that she was being sent for one year leave without pay to obtain essential certificate prescribed for the post of Teacher within the said period, failing which her services shall be deemed to have been terminated. This order was challenged by the respondent before the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur ('the Tribunal'), which vide detailed orders dated 18.8.2004 allowed the appeal, set aside the impugned order referred to above, which was declared to be ineffective and void. The Tribunal also directed the appellant Institution that the respondent may be granted pay and allowances as per the recommendations of Fifth Pay Commission according to the Rules. The appellant Institution challenged the order of the Tribunal, dated 18.8.2004 before this Court by way of writ petition under Article 226 of the Constitution of India and the learned Single Judge of this Court vide orders dated 29.9.2004 dismissed the same. It is, in these circumstances that the present DB Civil Special Appeal (Writ) has been filed under Section 18 of the Rajasthan High Court Ordinance, 1949. Challenge in the appeal is obviously to the order passed by the learned Single Judge, dated 29.9.2004 as also the order passed by the Tribunal, dated 18.8.2004.
(2.) Learned Single Judge referred to the findings recorded by the Tribunal that the respondent Smt. Anita Joshi was duly qualified for appointment and possessed M.Phil, in the year 1993 itself as the result of her examination had since already been declared in 1994 much prior to her appointment. That apart, learned Single Judge held the appellant Institution had successively appointed Smt. Anita Joshi by three separate orders as per the appointments made earlier and therefore, even of technical plea of the appellant Institution was to be accepted on the first occasion that she was not qualified to be appointed as per result for M.Phil, examination had not been published by 31.12.1993, fresh appointment which was given to her in the year 1996 could not be withdrawan on the plea that the result of her M.Phil, was not declared on or before 31.12.1993 as the same could have been made applicable only if the appointment had been made in the year 1993. It also held that the plea of the appellant Managing Committee after the respondent had put in long number of years of service as School Lecturer (History) could not have been legally interfered on the ground that she was not qualified merely because the result of her M.Phil, was not declared at the time of her appointment.
(3.) Learned counsel appearing for the appellant, despite categorical findings recorded by the Tribunal, as mentioned above, which have been affirmed by the learned Single Judge, still persists with the plea of the appellant Institution that the respondent Smt. Anita Joshi was not qualified to hold the post under contention as result of her examination of M.Phil, had not been declared when she was appointed. In support of his contention, learned counsel placed reliance on a division bench judgment of this Court in Pankaj Kachhawah v. State of Rajasthan and Ors.(2002(2) WLC (Raj.) 40) : (RLW 2003(3) Raj. 1482) .;