Khetri Vikas Samiti vs Director College Education, Government of Rajasthan & Ors.

Rajasthan Non-Government Educational Institutions Act, 1989 – s.18 – Rajasthan Non-Government Educational Institutions (Recognition, Grant-In-Aid and Service Conditions etc.) Rules, 1993 – r. 39 – Private Respondents engaged as Assistant/Lab boy, sweeper, waterman and mechanic respectively in the nonGovernment College of the appellant – Managing Committee of the appellant abolished the said posts – Tribunal and the High Court held the abolition of posts bad in law – On appeal, held: Managing Committee of the appellant was facing financial constraints and running in heavy losses – There was no finding that the decision of the Management to abolish posts was malafide and/or with the oblique motive – Further, the question before the Tribunal was with respect to the removal and not with respect to abolition of the posts – Also, the entire financial position of the appellant was not considered by the High Court – Therefore, in absence of challenge to the Managing Committee to abolish the posts in question and non-consideration of the financial position of the appellant – Reasoning given by the Tribunal and the High Court to hold the abolition of posts bad in law, unsustainable.

Allowing the appeals, the Court

HELD: 1. On a fair reading of Section 18 of the Rajasthan Non-Government Educational Institutions Act, 1989 and Rule

39 of the Rajasthan Non-Government Educational Institutions (Recognition, Grant-In-Aid and Service Conditions etc.) Rules, 1993, this Court is of the opinion that Section 18 of the Act and Rule 39 would not be applicable in case of removal of an employee due to the abolition of posts, more particularly when the post to which the employee is working was not aided and that his appointment was not approved by the Education Department. In the case of Shri Maheshwari Senior Higher Secondary School v. Bhikha Ram Sharma , this Court has specifically observed and held that in case of termination of the service of the employee due to abolition of post, the question of conducting the enquiry under the Rules does not arise. Though the said decision was cited and relied upon by the counsel appearing on behalf of the appellant before the Division Bench of the High Court, the Division Bench thereafter has not at all dealt with and/or considered the same. Therefore, the Tribunal, Single Judge and Division Bench of the High Court have materially erred in applying Section 18 of the Act and in holding the removal of the concerned employees which as such was due to the abolition of the posts was hit by Section 18 of the Act. At this stage, it is required to be noted that even the State Government also made its stand clear before the Single Judge vide letter dated 25.01.2005 which was placed before the Single Judge pursuant to the order passed by the High Court, in which it was specifically stated that there is no necessity for seeking Government approval for the removal of the employees, as the posts to which they were working were not aided posts and that their appointment was not approved by the Education Department. The Single Judge has refused to take into consideration the communication dated 25.01.2005 on the ground that the said communication was not placed before the Tribunal. The said communication could not have been produced before the Tribunal as the said communication was after the decision of the Tribunal. When the said communication was placed on record by way of an additional affidavit and that too pursuant to the direction issued by the Single Judge, the Single Judge ought to have considered the same. Therefore, even as per the State Government also, the prior approval of the State authorities was not required. Therefore, the impugned judgment and order passed by the Division Bench of the High Court, Single Judge of the High Court and the Tribunal holding that the removal of the concerned employees was hit by Section 18 of the Act, cannot be sustained and the same deserves to be quashed and set aside. [Para 11.2] [652-B-H; 653-A-B]

2. Now, so far as question, namely whether the Tribunal and the Single Judge were justified in holding the abolition of posts bad in law is concerned, it is required to be noted that a conscious decision was taken by the Managing Committee of the institution/Management to abolish the posts as the institution/Management was facing the financial constraint and running in heavy losses. Therefore, unless and until the said decision is found to be arbitrary and/or mala fide and/or with some oblique reason, it was not open for the Tribunal and/or the High Court to interfere with such decision of the Management to abolish the posts. Considering the reasoning given by the High Court and the Tribunal as such there is no specific finding that the decision of the Management to abolish the posts was mala fide and/or with the oblique motive. It is required to be noted that the question before the Tribunal was with respect to the removal and not with respect to abolition of the posts. The decision of the Management/Managing Committee to abolish the post was not under challenge. Therefore, in absence of challenge to the decision of the Managing Committee to abolish the posts in question, it was not open for the Tribunal and/or the High Court to hold that abolition of posts was bad in law. [Para 12] [653-B-E]

3. Even otherwise, on merits also, the decision of the High Court in holding the abolition of posts bad in law, cannot be sustained. The Single Judge of the High Court has held the abolition of posts bad in law by observing that as the institution/Management received the grant and the fees from the students, it cannot be said that the financial condition of the Management was weak which warranted abolition of posts. However, it is required to be noted that before the Single Judge the entire financial position/balance-sheet was not placed before the High Court. Merely some grant might have been received by the institution/Management and/or the Management might have received the fees from the students, unless and until the balancesheet and the entire expenditure are considered, it was not open for the High Court to come to the conclusion that the financial condition was not such poor which warranted the abolition of posts. Therefore, even the reasoning given by the High Court to hold that the abolition of posts bad in law, cannot be sustained. [Para 12.1] [653-F-H; 654-A]

Shri Maheshwari Senior Higher Secondary School v. Bhikha Ram Sharma (1996) 8 SCC 22 : [1996] 2 SCR

466 – relied on.