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. 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 vs. State of Rajasthan and Others (2002 (2) WLC (Raj.) 40) = (RLW 2003 (3) Raj. 1482 ). In the context of impressive array of facts, as, fully detailed above and in particular that the objection with regard to the ineligibility of Smt. Anita Joshi came to be raised by the appellant after eight years of her appointment despite the fact that she was issued three separate letters of appointment in successive years, there will be no occasion to examine the contention of the learned counsel, as noted above in the context of division bench judgment in Pankaj Kachhawah (supra ). However, we find that the judgment cited by the learned counsel also would not advance its case. The facts of the case aforesaid reveal that in M. Phil. examination 1992, the appellant in that case appeared but did not succeed. Thereafter, he `appeared in 1994 in M. Phil. examination 1993' conducted by the University of Rajasthan, the mark-sheet of which was received on 10. 11. 1997. By advertisement No. 5/97-98, 79 posts of Lecturers in Geography were advertised. The applications were required to be submitted by 9. 2. 1998. One of the conditions of eligibility for the post was that the candidate besides fulfilling educational qualification as prescribed should have cleared eligibility test for Lecturer conducted by U. G. C. C. S. I. R. or similar test accredited by the UGC. This, admittedly, the petitioner did not possess and was therefore, not within the field of substantive provision of eligibility or para 3 of the proviso added to the eligibility clause by First Amendment Regulations, 1995. He further claimed that since examination of 1993 was not held in time by the University because of its practice followed in not conducting successive examination until result of earlier examination is declared, the examination of 1993 for M. Phil. (Geography) which could not be conduct by 31. 12. 1993 was conducted in August, 1994 which he had passed and therefore, he could not be denied the benefit of proviso because of the fortuitous circumstance of not holding the examination of 1993 in time prior to 31. 12. 1993. On the facts as detailed above, this court held that the petitioner had not taken examination of 1993 before 31. 12. 1993 and therefore, his passing the examination by 31. 12. 1993 could not have arisen even by invoking principle of relating the result of examination back to the date of holding of examination and the theory of relation back would not assist him in getting into the operative field of the proviso. The appellant it appears is oblivious of the findings of the Division Bench recorded in para 8 of the same judgment which read as follows:- " 8. This doctrine of relation back, we have referred to by assuming that two alternatives have been envisaged. One is merely submitting thesis of Ph. D. by 31. 12. 93. In such case approving thesis and conferment of Ph. D. degree prior to 31. 12. 1993 is not precondition. In such event, a candidate who is pursuing Ph. D. becomes eligible merely by fulfilling the condition of submitting thesis for scrutiny and approval by the university as per its provisions. Obviously, it is inherent that only such case can be considered in which Ph. D. thesis is ultimately accepted, otherwise if mere submission of thesis is taken to be sufficient, without treating it essential that such thesis is ultimately approved, it will make the provision highly unreasonable and arbitrary. In that view of matter to save the proviso from vice of unreasonable and arbitrary so as to violative of Art. 14, it is reasonable to hold that taking examination of M. Phil. prior to December 31, 1993 can be treated in the same way as Ph. D. That is to say if the conferment of Ph. D. degree after 31. 12. 1993 on the basis of thesis submitted prior to 31st Dec. 1993 as by relating the qualification back on the date of submission of thesis, or by treating the submission of thesis equal to taking of examination of M. Phil prior to 31. 12. 93, becomes relevant only if the candidate is ultimately conferred with Ph. D. on that basis or passes M. Phil. On the basis of examination taken prior to 31. 12. 93. "
(3.) IN the present case, even if it is assumed that the result of respondent herein of M. Phil. had not been declared by the time she was given order of appointment, it would make least difference. She had taken examination, submitted her thesis and was only awaiting the result in which indeed she was successful and was conferred the degree of M. Phil. She had appeared in the examination of M. Phil, in the year 1993 but her result was announced in April, 1994, for which she cannot be blamed. The University had also given provisional information to her that she had passed M. Phil in the year 1993, though the degree was issued later. She had made in clear to the appellant INstitution before coming into the service that she possessed minimum qualifications for the post as per norms of UGC and after considering everything, she was taken into service. That apart, as mentioned above, it is proved on the records that Dr. Anita Joshi was given successive appointments on three occasions and therefore, even if it is assumed that on the first occasion when she was issued appointment letter result of her M. Phil. had not been declared, surely that would not be the position when she was issued second and third letter of appointment. She had successfully completed two years of probation period and was given regular appointment as well. The decision of the appellant, in the circumstances as fully detailed above, giving a conditional marching order to her after eight years of her unblemished service, appears to be too harsh, iniquitous and wholly illegal. We are surprised that the appellant, which is an educational institution, has hounded its own employee and persisted with its wholly unjustified action for such a long time, in all probability, knowing fully well that the defence projected by it is totally hollow and unsustainable. Records of the case further show forceful resistance by the appellant in execution of order passed by the Tribunal, details whereof, however, need no mention. We find this appeal to be totally bereft of any merit and dismiss the same with costs, quantified at Rs. 10,000/- (Rupees ten thousand ). ;