ASOPA, J. - (1.) THE instant special appeal was listed on 21. 4. 2006 for hearing on stay vacating application. THE counsel for the parties agreed on that day that instead of deciding the stay matter, the appeal itself may be finally decided. Accordingly, the counsel for the parties made submissions and order was reserved.
(2.) THIS special appeal is directed against the judgment of the learned Single Judge dated 24. 8. 2005, whereby he dismissed the writ petition filed by the appellants against the order of the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short 'the Tribunal') dated 24. 9. 2003, whereby the appeal filed by respondent No. 1 was accepted and he was reinstated in service with all consequential benefits. The respondent No. 1 first filed a writ petition against the order of termination dated 14. 8. 1993 which was registered as S. B. Civil Writ Petition No. 5542/1993 and withdrew the same with the permission to file appeal before the Tribunal, which was granted by this Court vide its order dated 22. 12. 1999. Thereafter, the respondent No. 1 filed the aforesaid appeal bearing number 17/2000 before the Tribunal along with an application for condonation of delay. The case of respondent No. 1 before the Tribunal was that he was appointed on probation as Sr. Clerk (UDC) vide order dated 14. 9. 1991 for a period of one year and that order was extended for further one year vide order dated 16. 8. 1992 and his services have been terminated on 14. 8. 1993 w. e. f. 16. 9. 1993 despite the fact that prior approval of the competent authority was refused on 7. 9. 1993 and 9. 9. 1993, the same was given effect. The order of termination is punitive in nature as earlier to it, his explanation for absence was sought and the same has been passed without following the provisions of inquiry. The further case of the petitioner was that the termination order has been passed without making compliance of Section 18 of the Rajasthan Non-Government Educational Institutions Act, 1989 (for short 'the Act of 1989') and Rule 39 (2) of the Rajasthan Non-Government Educational Institutions Rules, 1993 (for short 'the Rules of 1993' ). After notice to the appellants, the delay was condoned. The appellants filed reply to the said appeal filed by respondent No. 1 and stated therein that in case of discharge of a probationer on account of not using sufficient opportunities given to the employee, who further failed to give satisfaction, no inquiry is necessary. The work performance of the extended period of probation of respondent No. 1 was adjudged by the Managing Committee in its meeting dated 19. 6. 1993 and it unanimously came to the conclusion that respondent No. 1 has not used sufficient opportunities and further failed to give satisfaction, therefore, his services are being dispensed with. The said decision along with complete record of the Managing Committee was also sent to the Deputy Director (Women), Education, Ajmer Circle, Ajmer vide letter dated 13. 8. 1993 for approval. On 7. 9. 1993, the Deputy Director gave reply that the Institution has not acted in accordance with Rule 39 (2) (a) to (h) of the Rules of 1993, therefore, further proceedings could be taken as per rule after taking action accordingly. On 8. 9. 1993, the Managing Committee clarified its position and submitted that in case of a probationer, the said Rule 39 (2) (a) of the Rules of 1993 is not applicable and prior approval was sought under Rule 30 (b) of the Rules of 1993, being a case of discharge of a probationer. Then again on 9. 9. 1993, the Deputy Director (Women), Education, Ajmer Circle, Ajmer wrote a letter to the appellant that the approval is not possible without making compliance of Rule 39 (2) of the Rules of 1993. The appellant has also stated that the action of the Government Official in issuing the aforesaid two letters is arbitrary and further they have not examined the said issue of a termination simpliciter of a probationer under Rules 30 (b) of the Rules of 1993. The State and its functionaries i. e. respondent Nos. 2 to 4 of the present appeal have also filed reply and have nowhere contended that Rule 39 (2) of the Rules of 1993 is applicable and have finally prayed for dismissal of the appeal. After hearing both the parties, the Tribunal vide its judgment dated 24. 9. 2003, gave a finding in para No. 11 that services have not been terminated by way of punishment, therefore, inquiry is not necessary but still held that there is non-compliance of Section 18 of the Act of 1989 and Rule 39 (2) of the Rules of 1993, which are meant for grant of reasonable opportunity and inquiry and, therefore, the impugned order was set-aside and directed to reinstate the respondent no. 1 with all consequential benefits.
(3.) THE appellants filed the writ petition against the order of the Tribunal dated 24. 9. 2003, whereby respondent No. 1 has been reinstated with all consequential benefits. In brief the facts of the writ are that the respondent No. 1 was appointed on probation for one year as Senior Clerk vide order dated 14. 9. 1991. Before expiry of the said probation period, the Managing Committee reviewed his performance and decided to extend the probation period for further one year vide order dated 16. 8. 1992 i. e. up to 15. 9. 1993 and before completion of the said extended period of probation, the Managing Committee again reviewed the performance of respondent No. 1 and was of the unanimous opinion that respondent No. 1 as U. D. C. during his probation period, has not made sufficient use of his opportunities and failed to give satisfaction, therefore, he is being discharged. THE said decision along with complete record of the Managing Committee was also sent to the Deputy Director (Women), Education, Ajmer Circle, Ajmer vide letter dated 13. 8. 1993 for approval. On 7. 9. 1993, the Deputy Director gave reply that the Institution has not acted in accordance with Rule 39 (2) (a) to (h) of the Rules of 1993, therefore, further proceedings could be taken as per rule after taking action accordingly. on 8. 9. 1993, the Managing Committee clarified its position and submitted that in case of a probationer, the said Rule 39 (2) (a) of the Rules of 1993 is not applicable and the action is to be taken as per Rule 30 (b) of the Rules of 1993, being a case of discharge of a probationer. THEn again on 9. 9. 1993, the Deputy Director (Women), Education, Ajmer Circle, Ajmer wrote a letter to the appellant that the approval is not possible without making compliance of Rule 39 (2) of the Rules of 1993. THE appellant has also stated that the action of the Government official in issuing the aforesaid two letters is arbitrary and further they have not examined the said issue of a termination simpliciter of a probationer under Rules 30 (b) of the Rules of 1993. In the writ petition, the appellants have further stated that in case of discharge of a probationer, who failed to avail sufficient opportunities and further failed to give satisfaction, no inquiry under Rule 39 (2) of the Rules of 1993 is necessary. The appellants have further stated in the writ petition that the present case is a case of termination simpliciter, therefore, there was no justification for issuing direction by the Deputy Director, Education, to conduct inquiry under Rule 39 (2) of the Rules of 1993. The Deputy Director has further failed to determine the scope of both the Rules i. e. Rule 30 (b) and 39 (2) of the Rules of 1993, out of which former Rule is applicable in case of a probationer, whose services have been simply discharged and the later Rule is applicable only when the termination order is founded on the basis of misconduct/stigma. The present appellants have also stated in the writ petition that the judgment of the Tribunal is self contradictory. In para 11 of the said judgment, the Tribunal has given the finding that the order of termination is a termination simpliciter, therefore, no inquiry is necessary, but in para 13 of the said judgment, the Tribunal has declared the termination order illegal on the ground that compliance of Section 18 of the Act of 1989 and Rule 39 (2) of the Rules of 1993 has not been made ignoring the fact that the said Section and Rule is applicable when the order of termination is punitive in character. The Tribunal has further considered the issue of prior approval, which is also required under Section 18 of the Act of 1989. The respondent No. 1 filed reply to the writ petition stating therein that Deputy Director vide its letters dated 7. 9. 1993 and 9. 9. 1993 rightly directed the petitioner-Institution to conduct inquiry under Rule 39 (2) of the Rules of 1993. Thus, the application seeking prior approval for terminating the services of respondent No. 1 was rejected twice. The aforesaid rejection never came to be challenged by the petitioner- Institution before any competent forum/court, thus, the rejection attained finality. The counsel for respondent no. 1 further stated in the reply that the termination order was per se stigmatic and, therefore, the Tribunal rightly disapproved the same. ;