LODHA, J. - (1.) IN this writ petition, the petitioner has assailed validity of an appointment accorded to the respondent No. 5on the post of L. D. C. in Jai Narayan Vyas Girls Senior Secondary School, Jodhpur, a non-government educational INstitution, recognized by the State Government (hereinafter referred to as "the respondent INstitution") and has sought declaration that being validly selected, he was entitled to be appointed on the said post in the respondent INstitution. The petitioner has sought further directions for his appointment on the post of L. D. C. IN the regular pay scale and regularisation of his services from the date of his initial appointment in the regular pay scale admissible to the post of L. D. C. The petitioner has also sought direction against the respondents No. 1 to 3 not to stop grant-in-aid admissible for the post of LDC in the respondent INstitution.
(2.) BRIEFLY stated facts of the case are that the respondent No. 4 is a Non Government Educational Institution governed by the provisions of the Rajasthan Non-Government Educational Institution Act, 1989 (in short "the Act of 1989" hereinafter) and the Rajasthan Non-Government Educational Institution (Recognition, Grant-in-aid and Service Conditions etc.) Rules, 1993 (in short "the Rules of 1993" hereinafter ). The petitioner was interviewed for appointment on the post of L. D. C. by the Selection Committee constituted for the purpose and having been found suitable was accorded appointment on the said post vide order dated 18. 1. 94 issued by the Manager of the respondent Institution for a period of six months or till the selection is made after advertisement of the post, whichever is earlier. In pursuance of the appointment order dated 18. 1. 94 the petitioner joined his duties on 20. 1. 94. The regular process of selection for appointment on the post of L. D. C. was undertaken by the respondent Institution and the names of the suitable candidates were requisitioned from the Employment Exchange, Jodhpur. The names of the petitioner and the respondent No. 5 were also forwarded by the Employment Exchange. The Selection Committee consisting of Shri Krishna Rao Kalla, Shri Mohan Lal Vyas, Smt. Rita Dixit and Smt. Girja Sharma was constituted. Shri Krishna Rai Kalla and Mohan Lal Vyas were the representatives of the Managing committee of the respondent Institution, Smt. Girja Sharma was the representative of the Department of Education and Smt. Rita Dixit is the Head Mistress of the respondent Institution. It is submitted that the norms of selection were settled amongst all the members of the Selection Committee. All the candidates including the petitioner were interviewed by the Selection Committee and thereafter type test of Hindi & English was also conducted. It is stated that in the selection, petitioner was found suitable but the representative of the Department of Education, Smt. Girja Sharma was interested in another candidate Shri Ramprasad Bora, respondent No. 5 herein, therefore, so as to extend favour to him, she took away the copies of Hindi & English type test and got them assessed at her own level. In the merit list prepared by the Selection Committee, the petitioner was placed at Sr. No. 1, one Shri Gajanand was shown at Sr. No. 2 and the respondent No. 5 herein, Shri Ramprasad Bora was shown at Sr. No. 3, however, the department's nominee respondent No. 6 herein, did not agree with unanimous decision of other members of the Selection Committee regarding the forms fixed for awarding of marks to the respective candidates. Vide communication dated 12. 8. 94 issued by District Education Officer (Girls), Jodhpur, the respondent Institution was informed that the departmental representative who had participated in the selection after taking proceeding in accordance with the Rules has selected Shri Ramprasad Bora for appointment on the post of L. D. C. , therefore, the selection proceedings drawn by the departmental representative recommending the name of Shri Ramprasad Bora may be sent after due signatures of other members of the selection committee for approval. Vide communication dated 23. 8. 94, the respondent Institution apprised the respondent No. 3 that the action of the department representative is not correct and accordingly, informed that the entire selection proceedings has been cancelled and the fresh proceedings are being taken for selection. However, vide communication dated 29. 9. 94 while justifying the recommendation made by the departmental representative, the respondent No. 3 directed the respondent Institution to comply with the order of the department and accord appointment to the respondent No. 5. The respondent Institution refused to comply with the directions issued by the respondent No. 3 and submitted that the right of appointment is vested with the Management Committee of the Institution and the Department of Education is empowered only to accept or reject the recommendation of the Selection Committee, therefore, it cannot interfere with the decision taken by the Management Committee. However, vide communication dated 25. 10. 94, the respondent No. 3 again insisted for compliance of directions issued vide communication dated 29. 9. 94. In these circumstances, vide communication dated 23. 11. 94, the respondent Institution while explaining the entire selection process in terms of the Rules of 1993 requested the respondent No. 2 to grant approval for appointment of the petitioner, who was the candidate duly selected by the Management Committee of the respondent Institution, However, vide communication dated 19. 1. 05 issued by the Chief Accounts Officer, Primary & Secondary Education, Rajasthan, Bikaner, the respondent Institution was informed that the proceedings taken by the departmental representative and the District Education Officer (Girls), Jodhpur are just and proper, therefore, the appointment may be accorded to Shri Ramprasad Bora forthwith. A reply to the writ petition has been filed on behalf of all the respondents, however, during the pendency of the writ petition, the respondent No. 5 has expired. The learned counsel appearing on behalf of respondent No. 5 submits that after the death of the respondent No. 5 even if, the writ petition fails, no relief can be extended to his legal representative, therefore, they are not interested in pursuing the matter any further. Accordingly, learned counsel prayed that his name may be deleted from the array of respondents. In the reply filed on behalf of respondents No. 1 to 3 and 6, it is stated that Smt. Girja Sharma, the representative of Department of Education was not interested in any candidate for did show show any favour to any person. However, it is not denied that Smt. Girja Sharma, the respondent No. 6 herein, had taken away the copies of Hindi & English type test and got them assessed on her own from the Lecturer said to be expert in the subjects. However, it is stated that the copies were got assessed as aforesaid, with the consent and concurrence of other members of the Selection Committee. It is submitted that the Management Committee by itself was not authorised to prepare its own merit list without signature of the departmental representative. It is submitted that the merit list prepared by Smt. Girja Sharma was approved by the Dy. Director (Women) as well the Director, Primary and Secondary Education, Rajasthan Bikaner. It is submitted that so far as eligibility qualification for the appointment on the post of LDC in the recognized aided education Institution is concerned, the same shall be governed by the Rajasthan Subordinate Offices (Ministerial Staff) Rules, 1957 (in short "the Rules of 1957" hereinafter) but, in view of the Rule 45 of the Rules of 1993, a person who has not attained the age of superannuation in any government office can also be appointed in non-government educational Institution, therefore, the bar of the age under the Rules of 1957 cannot operate against the grant of appointment in non-government educational Institution. It is submitted that the selection committee, before the selection had taken a decision that 5 marks will be kept for interview and after holding the interview the aggregate of total marks granted by all the members of the selection committee shall be divided by 5 and average thereof will be taken and it was further decided that the marks obtained in the Secondary Examination, Hindi & English type test of 50 marks each shall be taken into account and the total marks obtained shall be divided by 2 while preparing the merit list. It is submitted that the departmental representative has applied the aforesaid norms laid down and accordingly made the recommendation for appointment of respondent No. 5 who stands at Sr. No. 1 in the merit list,which is just and proper. It is submitted that norms formulated by the members of the Selection Committee prior to interview was perfectly correct and the departmental representative was justified in assessing the marks in accordance with the said formula and recommend the name of respondent No. 5 according to his place in merit. The respondent No. 4 is its reply has supported the case of the petitioner and reiterated the stand taken by it in the correspondent with the Department of Education referred supra. It is relevant to note at this stage, that while issuing show cause notice as to why the petition may not be admitted, vide order dated 14. 2. 95, this Court was pleased to grant an interim order in favour of the petitioner in terms that "the petitioner's services shall not be dispensed with and respondent No. 5 shall not be appointed as L. D. C. in the Institution until further orders. " After hearing all the parties, vide order dated 4. 8. 97, the aforesaid interim order was confirmed by this Court until final decision of this writ petition, therefore, the petitioner is continuing in service of the respondents till this date.
(3.) IT is contended by the learned counsel for the petitioner that the action of the respondent Nos. 1 to 3 in directing the respondent Institution to appoint respondent No. 5 on the post of LDC is ex-faice illegal for the reason that he was not validly selected candidate. IT is submitted that respondent No. 5 was not even eligible for appointment on the post of LDC inasmuch as, at the relevant time when the names where requisitioned from the Employment Exchange, the respondent No. 5had already crossed the maximum age prescribed for direct recruitment on the post of LDC. IT is submitted that in the select list prepared by three members of the Selection Committee, other than, the departmental representative, the petitioner is place at Sr. No. 1, however, so as to extend undue advantage and favour the respondent No. 5, the departmental representative has manipulated the record and in violation of the norms laid down for the selection, the marks obtained by the respective candidate in qualifying examination has been taken on percentage basis whereas, the marks in the type test have been taken on actual basis. IT is submitted that if the marks are calculated on the basis of the criteria laid down by the Selection Committee then, the respondent No. 5 could not have been placed at Sr. No. 1 in the merit list. IT is submitted that as per provisions of Rule 27 of the Rules of 1993, the Management Committee is required to forward the list of selected candidates with its recommendations to the competent authority, who in its turn in exercise of the power conferred by Rule 28 of the Rules of 1993 may approve the selection or reject the same for which the reasons are required to be recorded in writing. IT is contended by the learned counsel that the departmental representative had no authority whatsoever to prepare the select list on its own and recommend the name of the respondent No. 5 for appointment to the competent authority. The learned counsel urged that the respondents No. 1 to 3 have acted absolutely without jurisdiction in directing the Management Committee of the respondent Institution to appoint respondent No. 5 accepting the recommendation made by the departmental representative unilaterally. The learned counsel further submitted that the respondent No. 5 has already expired and the petitioner is continuing in service of the respondent Institution since 18. 1. 94, therefore, even otherwise, he is entitled to be regularised on the post of LDC. The learned counsel appearing on behalf of the respondent No. 4 while supporting the petitioner submitted that before the selection criteria for awarding the marks was laid down by the Selection Committee which has been placed on record as Annexure R4/4. It is submitted that the departmental representative had no authority to take away the sheets of Hindi &english type test and got them evaluated on her own, but even if, the marks which have been awarded in the type test to all the candidates who have appeared before the Selection Committee are taken to be correct then too, according to the norms laid down in the merit list prepared by the Selection Committee, which is placed on record as Annexure R 4/2, the petitioner stands at Sr. No. 1, therefore, the Management Committee has rightly recommended the name of the petitioner for appointment on the post of LDC in the respondent Institution. It is submitted that the action of the departmental representative amounts to undermining the authority of other members of the Selection Committee which is in clear violation of the provisions of the Rules of 1993. I have considered the rival submissions and perused the record. ;