RATHORE, J. - (1.) THE petitioner was appointed by the respondent no. 5, the Modern Balika Mandir Uchcha Prathmik Vidyalaya, Brahmpuri, Jaipur, as Teacher Grade-III on 31. 8. 87.
(2.) THE services of the petitioner were terminated vide order dated 27. 11. 95. Being aggrieved and dissatisfied with the termination order, the petitioner preferred an appeal before the Non Government Educational Institutions Tribunal, Jaipur and the appeal of the petitioner was dismissed by the Tribunal vide its order dated 10. 3. 97. This present petition has been preferred by the petitioner against the termination order dated 27. 11. 95 and the order passed by the Tribunal dated 10. 3. 97 on the ground that the dismissal order which has been passed by the respondent no. 5 is passed without following due process of law and no reasonable opportunity of being heard has been provided to the petitioner and the Tribunal also seriously erred not to consider the provisions of Section 18 of the Rajasthan Non Government Educational Institutions Act, 1989 (for short, the Act of 1989) and Rule 39 of the Rajasthan Non Government Educational Institutions Rules, 1993 (for short, the Rules of 1993) and without following due process of law, the services of the petitioner have been terminated and this aspect has not been properly considered by the Tribunal whether the provisions of Section 18 and Rule 39 in the instant case has been complied with or not and dismissed the appeal of the petitioner. After referring Section 18 and Rule 39 and the definition clause 2 (1), 2 (r) and 2 (s), learned counsel for the petitioner placed reliance on the judgment of the Division Bench of this Court in the case of "managing Committee of Army School & Another vs. Smt. Pushpa Sharma & Others" reported in 2006 (3) Western Law Cases (Raj.) 504; the judgment rendered by the Division Bench in the case of "saint Meera Brotherhood Society vs. State of Rajasthan & Others" reported in 2006 (1) Western Law Cases (Raj.) 677 and the judgment of Hon'ble the Supreme Court in the case of "haresh Daya Ram Thakur vs. State of Maharasthra And Others reported in 2000 WLC (SC) Civil 486. Per contra, learned counsel appearing on behalf of the respondents has submitted that the petitioner was appointed purely on temporary and ad hoc basis without any advertisement and without following due process of selection and she was not qualified to be appointed being untrained. She was appointed purely on temporary and ad hoc basis without being selected as due to temporary swelling of the strength of the students on temporary basis. Since the year 1993, the strength of the students came down and there was substantial decrease in strength of students. Only 8 posts of Assistant Teachers were sanctioned by the Education Department. A duly constituted selection committee inclusive representative of Education Department was constituted to fill up the four vacancies. Smt. Kiran Bhati also applied for one of the posts against the sanctioned posts. Her candidature was rejected and as such the petitioner was not found suitable and was not selected. As the selected candidates were made available and there was no post against which she could continue, her services were dispensed with being temporary and ad hoc and not on the basis of any mis conduct as envisaged under Section 18 of the Act of 1989 and Rule 39 of the Rules of 1993. The respondent also referred an order dated 10. 3. 97. In support of his submissions, learned counsel for the respondents referred a judgment rendered by the Division Bench in the case of "hemant Kumar Vaidhya vs. Adarsh Shiksha Parishad Samiti, Jaipur" decided on 11. 7. 97; "rajasthan Vidya Peeth vs. Judge, RNGEI Tribunal (SB Civil Writ Petition No. 222/98); the case of Hon'ble the Supreme Court "dr. G. Sarana vs. University of Lucknow" reported in SLR 1976 (2) 509; WLC 2005 (1) 504 Fateh Chand Dammani Balika Vidya Mandir vs. RNGET & Others and SLR 1992 (4) 776 "state of Haryana vs. Piara Singh.
(3.) HEARD rival submissions of the respective parties. Learned counsel for the petitioner referred definition clause 2 (1) of the Act of 1989 by which "employee" includes a teacher and every other employee working in a recognized institution. Clause 2 (r) provides "salary" means the aggregate of the emoluments or an an employee including dearness allowance or any other allowance or relief for the time being payable to him but does not include compensatory allowance and clause 2 (s) defines "sanctioning authority" which means an officer authorized by the State Government to sanction aid to such recognized educational institutions as the State Government may specify from time to time in accordance with the procedure to be prescribed. So far the reference given by the petitioner with regard to the employee, salary and sanctioning authority is concerned, there is no dispute and that the petitioner is temporary employee and paid salary. I have also carefully perused Section 18 which reads as under:- Section 18- Removal, dismissal or reduction in rank of employees.- subject to any rules that may be made in this behalf, no employee of a recognized institution shall removed, dismissed or reduced in rank unless he has been given by the management a reasonable opportunity 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 authorized by him in this behalf has been obtained- (1) to a person who is dismissed or removed on the ground of conduct which led to his conviction on a criminal charge, or (2) where it is not practicable or expedient to give that employee an opportunity or showing cause, the consent of Director of Education has been obtained in writing before the action is taken, or (3) Where the managing committee is of unanimous opinion that the services of an employee can not be continued without prejudice to the interest of the institution the services of such employee are terminated after giving him six months notice or salary in lieu thereof and the consent of the Director of Education is obtained in writing" Rule 39- ;