Sandeep Mehta, J. - (1.) THE petitioner institution has approached this Court by way of the instant writ petition assailing the validity and legality of the order (Annex.9) dated 22.5.1999 passed by the Rajasthan Non -Government Educational Institutions Tribunal, Jaipur (hereinafter referred to as 'the Tribunal') in Appeal No. 277/98 whereby the Tribunal whilst accepting the appeal preferred by respondent No. 3 Ajay Kumar Dixit held that the order dated 30.6.1998 passed by the petitioner institution, whereby services of respondent No. 3 and another teacher Mahesh Chandra were terminated was illegal. Both the teachers were directed to be reinstated treating their services to be continuous. They were further held entitled to 50% of the wages during the period they were kept out of service.
(2.) FACTS in brief are that the petitioner society is registered under the Societies Registration Act and runs a Secondary School at Jodhpur. The respondent No. 3 Ajay Kumar Dixit was appointed on the post of Assistant Teacher in the petitioner's school on temporary basis w.e.f. 30.7.1991 vide order (Annex.1). The tenure of respondent No. 3 was effective upto 16.5.1992. Thereafter, vide order dated 16.5.1992, his term was extended for a period of two years i.e. upto 30.6.1994. He was given further extensions and his services were extended uptil 30.6.1998. The petitioner claims that the respondent No. 3 was offered a fresh appointment to the post vide order dated 20.5.1998 for a period of one year but he declined to accept the offer. The stance of the petitioner institution is that the services of respondent No. 3 came to an end with efflux of time on 30.6.1998. A consequential order (Annex.3) was passed by the petitioner institution relieving respondent No. 3 from duty w.e.f. 1.7.1998. The respondent No. 3 challenged the order (Annex.3) dated 30.6.1998 by filing an appeal before the Tribunal. It was averred in the appeal that the respondent No. 3 had been appointed on the post of Teacher Gr.III in the pay scale of 1260 -2050 per month through proper selection process but no appointment letter was provided to him. The respondent No. 3 further claimed that right till the date of his termination, he discharged his duties to the utmost satisfaction of the petitioner institution. It was further claimed that the termination of his services was not preceded with any notice and was effected without complying with the mandatory provisions of Section 18 of the Rajasthan Non -Government Educational Institution Act, 1989 (hereinafter referred to as 'the Act') and Rule 39 of the Rajasthan Non -Government Educational Institution (Recognition, Grand in Aid and Service Conditions Etc.) Rules, 1993 (hereinafter referred to as 'the Rules'). The claim was contested by the petitioner institution by filing a reply. The petitioner institution specifically pleaded before the Tribunal that the claim was based on false averments. The appointment of the respondent No. 3 was on fixed term and there were breaks in service during the period between 5.8.1991 to 30.6.1998 on which date the services of the respondent No. 3 came to an end by efflux of time. The stand taken by the petitioner institution was that the provisions of the Act and the Rules were not applicable to the case at hand as the petitioner institution was governed by its own guidelines (Annex.4). It was further pleaded by the Petitioner Institution that only 5 posts of Teacher Grade III were sanctioned in the institution by the Directorate, Primary and Secondary Education, Bikaner and 5 duly selected teachers were already working against the said sanctioned posts. As the sanctioned post strength had saturated, the respondent No. 3 could not have been given regular appointment. He was working against a non -sanctioned post for a fixed term and his services came to an end with efflux of time. The Tribunal however discarded the plea taken by the Petitioner Institution and held that the removal of the respondent No. 3 from service without following the procedure of mandatory enquiry prescribed under Section 18 of the Act and Rule 39 of the Rules was illegal. While accepting the appeal preferred by the respondent No. 3, the Tribunal by the impugned order directed his reinstatement in service in the above referred terms. The petitioner institution has now approached this Court by way of the instant writ petition assailing the validity and legality of the order dated 22.5.1999 passed by the Tribunal.
(3.) SHRI Rajeev Purohit, learned counsel for the petitioner relied upon the decision rendered by the Hon'ble Apex Court in the case of Shri Maheshwari Senior Higher Secondary School & Anr. v. Bhikha Ram Sharma & Ors. reported in : (1996)8 SCC 22 and urged that the Hon'ble Apex Court held that before passing an order of termination in case of an ad hoc employee, holding an inquiry is not a condition precedent and thus, the dismissal of the respondent No. 3 from service was wrongly set aside by the Tribunal. He further submitted that the learned Single Bench of this Court in the case Shri Maheshwari Senior Higher Secondary School v. Mahendra Kumar Rana reported in 1996 (1) WLC (Raj.) 148 has referred the matter to a Larger Bench but in view of the aforesaid Supreme Court Judgment, even in absence of the reference being answered, the order passed by the Tribunal cannot be sustained. He contended that abolition of a post and the availability of limited posts has virtually one and the same meaning and consequently, as non -availability of the post of a regular teacher in the petitioner institution is not disputed, the petitioner institution was not required to hold an inquiry before terminating the services of the respondent No. 3 and that the provisions of Section 18 of the Act and Rule 39 of the Rules have no application whatsoever to the case at hand.;