ASOPA, J. - (1.) BY this writ petition the petitioners- Institution seeks to challenge the order dated 1. 8. 1994 of the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short `the Tribunal) in case No. 127/94 whereby the Tribunal has directed the petitioners-Institution to fill the vacant post of Library LDC by promoting respondent No. 3 Beni Prasad Saini, who is class-IV employee.
(2.) BRIEFLY stated the relevant facts of the case are that the respondent No. 3 filed an appeal before the Tribunal for seeking direction for filling the post of Library LDC by promoting him and further the advertisement issued for filling the same be quashed. It has also been prayed that in case during pendency of the appeal, the post is filled in pursuance to the said advertisement, then the same be declared illegal and contrary to law. In the appeal before the Tribunal, the respondent No. 3 has submitted that he is class-IV employee in Agrawal College since 25 years having qualification of Higher Secondary with Certificate in library science and a post of Library LDC is vacant in the college, hence, the same be filled by promotion taking into consideration the Rajasthan Subordinate & Ministerial Staff Service Rules, 1957 (for short `the Rules of 1957') wherein 13% quota is reserved for filing the post of LDC from class-IV. He has also submitted that one Shri Awdesh Kumar - Class IV employee was given promotion to the post of Lab Assistant. The reply was filed by the petitioners-Institution before the Tribunal and it was submitted that there is no provision in the Rajasthan Non-Government Educational Institutions Act, 1989 (for short `the Act of 1989') and the Rajasthan Non-Government Educational Institutions Rules, 1993 (for short `the Rules of 1993') for filling the post by way of promotion and further it provides for direct recruitment of all the posts. It was further submitted that the Rules of 1957 are not applicable to the educational institution covered by the Act of 1989, rather Rules are applicable only to the employees of the State Government. It was also submitted that no direction can be issued for granting promotion, more particularly, when there is no provision in the Act of 1989 and the Rules of 1993 for doing so. The petitioners- Institution in its reply before the Tribunal has further denied that Shri Awdesh Kumar was given promotion from class-IV post to the post of Lab Assistant and it was submitted that he was class- IV employee in Agarwal Senior Secondary School which is the different institution and he was appointed by direct recruitment on the post of Lab Assistant. The Tribunal after hearing both the parties, considered the aims and objects of the Act of 1989, Section 29 of the Act of 1989 and grant of selection scale on completion of 9, 18 and 27 years of service of the Government servants which was been made applicable to the non-Government institution also and further the Tribunal has relied on a Supreme Court judgment in Raghunath Prasad Singh vs. Secretary, Home (Police) Department, Government of Bihar and Others, reported in AIR 1988 SC 1033 and vide its judgment dated 1. 8. 1994 came to the conclusion that the respondent No. 3 is working as class-IV employee since 25 years and has a right to be promoted as Library LDC. While deciding the right of respondent No. 3 for the said vacant post of Library LDC, has given the finding that the Tribunal has the jurisdiction to give judgment on the issue as there is a dispute with regard to service condition of promotion. The relevant portion of the aforesaid judgment of the Tribunal is as follows: *** Against the aforesaid judgment of the Tribunal, the present writ petition has been filed by the Institution on the same grounds taken in reply to the appeal and while dealing with the same, the Tribunal has committed error apparent on the face of the record with additional ground that the Tribunal has no authority to issue direction for promotion. The State Government has filed reply to the writ petition but no reply to the writ petition has been filed by respondent No. 3. The State in its reply has submitted that the Rules of 1957 are exclusively applicable to the employees of the State Government and further aims, objects and reasons cannot be allowed to be read some thing which is not provided in the provisions of the Act or Rules. It has also been submitted by them in reply that all appointments are to be made by direct recruitment subject to approval of Director of College Education.
(3.) ALTHOUGH no reply has been filed by respondent No. 3 but the memo of appeal filed by him before the Tribunal is on record as Annexure-1. The submission of Shri Maloo, learned counsel for the petitioners-Institution is that as per the Act of 1989 and the Rules of 1993 all posts are required to be filled by direct recruitment and there is no provision for promotion. He further submits that the Rules of 1957 are not applicable on the non- Government educational institutions and the grant of selection scale is in lieu of promotion. The Tribunal has committed serious illegality in giving the finding that the aforesaid submissions are limited and narrow and the same are not the solution of the problem and further everything is not to be written in law. The further submission of Shri Maloo, learned counsel for the petitioners-Institution is that apart from above, the Tribunal has seriously committed an illegality in giving the direction to fill the post of Library LDC by promoting respect No. 3 as the Courts can give direction to consider the case for promotion where promotional avenue exists but can not give direction to make promotion. Shri Maloo has also submitted that it is true that the State Government has power to regulate the terms and conditions of employees of the non-Government educational aided institutions as per Section 16 of the Act of 1989 but in the said Section, the term regulate recruitment and conditions of service ``did not include the promotion''. The State Government has also not supported the judgment of the Tribunal by adopting the aforesaid submissions. ;