Rajasthan High Court
Nisha Saxena vs State Education Departmentanr on 8 April, 2022
Bench: Anoop Kumar Dhand
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 18382/2011
Nisha Saxena D/o Late Munni Lal, aged about 50 years, R/o 111-
A/412, Ashok Nagar, Kanpur U.P.
----Petitioner
Versus
1. State Of Rajasthan Through Commissioner, College Education
Government Rajasthan, Shiksha Sankul, J.L.N. Marg, Jaipur
2. The Secretary, J.B. Shah Girls (P.G.) College, Jhunjhunu Raj.
3. Dr. Manorama Tyagi, Lecturer, S.v. Govt. College, Khetri, Near
SDM Court, Neem Ka Thana Road, Khetri, Distt. Jhunjhunu,
Rajasthan
----Respondents
For Petitioner(s) : Mr. Sandeep Saxena
Mr. Shiv Charan Gupta
For Respondent(s) : Mr. N.K. Maloo, Sr. Adv. assisted by
Mr. Vishnu Bohra
Ms. Charvi Patni for
Mr. V.B. Sharma, AAG
HON'BLE MR. JUSTICE ANOOP KUMAR DHAND
Order
Date of Reserve :: 29.03.2022
Date of Pronouncement :: April 8, 2022
Reportable
Instant petition has been filed by the petitioner with the
following prayers:-
"It is, therefore, respectfully prayed that:-
1. The Hon'ble Court may kindly be pleased to call the entire
record of the case and after examining the same be pleased to
quash and set aside the action of the respondents and the
respondents are directed to consider the petitioner to be
appointed on aided post w.e.f. 01.04.1994 with all consequential
benefits and respondent No.2 may directed to send the service
record of the petitioner to the respondent No.1 and respondent
No.1 may directed to consider the candidature of the petitioner
(2 of 21) [CW-18382/2011]
for appointment on the post of Senior Lecturer (Psychology)
under the Rajasthan Voluntarily Rural Education Service Rules,
2010 w.e.f. 29.07.2011, with all consequential benefits.
2. Any prejudicial order to the interest of the petitioner, if
passed during the pendency of the writ petition, the same may
kindly be taken on record and be pleased to quash and set
aside.
3. Any other appropriate writ, order or direction, which this
Hon'ble Court may consider just and proper, in the facts and
circumstances of the case, may kindly be passed in favour of the
petitioner.
4. Cost of the writ petition may be quantified in favour of the
petitioner."
Brief facts of the case are that vide order dated
17.07.1986 the petitioner was appointed on the post of College
Lecturer in Psychology in J.B. Shah Girls P.G. College, Jhunjhunu
i.e. respondent No.2 initially for a period of one year on probation
basis. Subsequently, her services were confirmed on the said post
on 15.12.1987 and thereafter the University of Rajasthan granted
approval on the appointment of the petitioner vide order dated
13.03.1992. Thereafter the services of the petitioner were
terminated vide order dated 20.02.1993. Against which she
submitted an appeal before the Rajasthan Non-Government
Educational Institutions Tribunal, Jaipur (for short 'RNGEI
Tribunal') and the same was allowed vide judgment dated
02.05.2001 and her order of termination dated 20.02.1993 was
quashed and set aside and she was directed to be reinstated with
continuity in service along with back wages and consequential
benefits.
The case of the petitioner is that the judgment passed
by the RNGEI Tribunal was challenged by the respondent No.2-
College before this Court by way of filing SB CWP No. 2809/2001
and the same was decided on 12.09.2001. The said order was
challenged by the respondent No.2 before the Division Bench by
(3 of 21) [CW-18382/2011]
way of filing DB Civil Special Appeal (Writ) No. 896/2001 and the
same was dismissed vide judgment dated 15.10.2001 against
which Special Leave to Appeal (Civil) No. 4337/2002 was
submitted by the respondent No.2 and the same was also
dismissed vide order dated 04.03.2002.
It is the case of the petitioner that the Government of
Rajasthan granted financial aid to the respondent No.2- College
for four sanctioned posts of Lecturer in Psychology subject and at
the relevant time when the aid was granted by the Government to
the respondent No.2- College, the petitioner alone was the
confirmed Lecturer in Psychology subject and the other three
Lecturers in Psychology subject namely; Mrs. Reena Shaktawat,
Ms. Neelam Krishnia and Ms. Priti Singh were temporary and
respondent No.3- Dr. Manorama Tyagi was not in service.
Thereafter, the Director of College Education gave approval to the
appointment of the petitioner vide order dated 17.04.1995.
Thereafter, the Screening Committee regularized the services of
three temporary Lecturers i.e. Mrs. Reena Shaktawat, Mrs. Reena
Shaktawat, Ms. Neelam Krishnia and Ms. Priti Singh vide order
dated 04.12.1995 but the name of the respondent No.3 Dr.
Manorama Tyagi was not considered for her regularization on the
post of Lecturer in Psychology.
It was also pleaded in the writ petition that the
Rajasthan Voluntary Rural Education Service Rules, 2010 (for
short 'the Rules of 2010') came into effect on 01.12.2010 for
appointment of the employees of Non-Government Aided
Educational Institution who are working against the sanctioned
and aided posts, who desire to be appointed under the Rules of
2010 and in pursuance of the said Rules the petitioner submitted
(4 of 21) [CW-18382/2011]
an application on 04.02.2011 expressing her desire to be
appointed under the Rules of 2010. It is also the case of the
petitioner that the option forms of the other junior Lecturers were
sent by the respondent No.2- College to the Government for their
appointment under the Rules of 2010 but the service record of the
petitioner was not sent by the respondent No.2- College. Hence,
the case of the petitioner was not considered by the Government
for her appointment under the Rules of 2010 and she was not
absorbed/appointed in Government service.
Reiterating the above facts pleaded in the writ petition
as well as in the rejoinder and in the additional affidavit, the
counsel for the petitioner argued that the petitioner was working
on the approved, aided and sanctioned post of College Lecturer in
Psychology, so, the respondent No.2- College may be directed to
send the service record of the petitioner to the respondent No.1-
Commissioner, College Education and the respondent No.1 be
directed to consider the candidature of the petitioner for her
appointment on the post of Senior Lecturer (Psychology) under
the Rules of 2010 w.e.f. 29.07.2011 with all consequential
benefits.
On the other hand counsel for the respondent No.2
submitted a detailed reply to the writ petition and denied the
averments of the petition and stated that the petitioner was
appointed on the post of Lecturer (Psychology) on 17.07.1986.
The institution was not aided and the post was neither sanctioned
nor approved by the Government. The College was given the
status of aided Institution w.e.f. 01.04.1994 but the post held by
the petitioner was neither sanctioned nor aided. It was pleaded by
the respondent that the College is affiliated by the University of
(5 of 21) [CW-18382/2011]
Rajasthan and only four posts of Lecturer (Psychology) were
sanctioned on which aid was given by the Government i.e. four
posts for Dr. Manorama Tyagi, Mrs. Reena Shaktawat, Ms. Neelam
Krishnia and Ms. Priti Singh were sanctioned and approved by the
Government under Rules 26 and 27 of the Rajasthan Non-
Government Educational Institutions Rules, 1993 (for short 'RNGEI
Rules, 1993'). It was also pleaded by the respondent No.2-
College that no aid was ever received by the College on the post
held by the petitioner as her appointment was not approved by
the Government of Rajasthan as per Rules 26 and 27 of the Rules
of 1993. It was also pleaded in the reply that since the post of the
petitioner was neither sanctioned nor approved nor aided by the
Government, hence, the Rules of 2010 are not applicable and the
petitioner is not entitled to get the benefit of the same as she
never worked on the aided post nor the College received aid
against this post of the petitioner as the petitioner was working on
an unaided post.
The respondent No.1 submitted reply to the writ
petition and denied the averments of the writ petition and
submitted that the respondent No.2- College was included in the
list of aided Institutions in the year 1994-1995 and four posts of
Lecturer (Psychology) were approved, sanctioned and granted
aid. It was also pleaded that Smt. Manorama Tyagi, Mrs. Reena
Shaktawat, Ms. Neelam Krishnia and Ms. Priti Singh were working
on the post of Lecturer (Psychology) and approval was given to
their appointment under Rules 26 and 27 of the RNGEI Rules,
1993 and accordingly aid was given to the institution for these
above four sanctioned posts. The Selection Committee never
recommended the name of the petitioner for her approval on the
(6 of 21) [CW-18382/2011]
post she was holding. It was also pleaded in the reply that the
Rules of 2010 came into effect on 01.12.2010 and in view of Rule
4 of the Rules of 2010, she is not eligible to get appointment as
her case does not fall within the definition of Rule 2(g) of the
Rules of 2010. Rule 2(g) deals with word "employee", means an
employee working in a recognized non-government aided
educational institution and who is working against aided and
sanctioned post and as per Rule 4 of the Rules of 2010 only
appointed employees in the Non-Government Aided Educational
Institutions who are working against sanctioned and aided post on
the date of commencement of these rules and who desire to be
appointed under the Rules of 2010, in accordance with the terms
and conditions mentioned in these Rules, can be given
appointment subject to the condition that an application in Form-I
is submitted to the Secretary of the concerned institution. Sub-
rule (2) of Rule 4 of the Rules of 2010 says that the Secretary of
the institution shall, after verifying the service particulars, forward
the applications to the concerned appointing authority along with
complete service record of the employees within 10 days from the
last date of receipt of applications. The Secretary of the
institution shall append a certificate to the effect that the service
particulars mentioned by the employees are correct. It was
pleaded by the respondent No.1 in the reply that since the
petitioner was not working on sanctioned, approved and aided
post, hence, she is not eligible to be considered under Rule 4 of
the Rules of 2010 to get appointment.
Counsel for the respondents reiterated the facts
pleaded by them in their reply and placed reliance on the following
judgments:-
(7 of 21) [CW-18382/2011]
1. Rajendra Prasad Sharma and Ors. Vs. State & Ors., reported in
2014(2) RLW 1520 (Raj.); and
2. Ravi Shankar Srivastava and Ors. vs. The State of Rajasthan
and Ors., reported in 2011 SCC Online (Raj.) 116.
Heard.
Considered the arguments of both sides.
The issue in this petition is "Whether the petitioner was
working on the sanctioned, approved and aided post of Senior
Lecturer (Psychology) in J.B. Shah Girls College at Jhunjhunu? If
yes, whether she is entitled for appointment on the post of Senior
Lecturer (Psychology) in Government service under Rule 4 of the
Rules of 2010?"
Rule 4 of the Rules of 2010 deals with the procedure for
appointment in Government service and the same is reproduced
as under:-
"4. Procedure of appointment in government service.
-- (1) Such regularly appointed employees in the Non-
Government Aided Educational Institutions who are working
against sanctioned and aided post on the date of commencement
of these rules and who desire to be appointed under the
Rajasthan Voluntary Rural Education Service Rules, 2010, in
accordance with the terms and conditions mentioned in these
rules, shall submit within 15 days from the date of publication of
these rules in the official gazette an application in Form-I, to the
Secretary of the concerned institution mentioning therein his/her
service particulars with an advance copy to the concerned
appointing authority.
(2) The Secretary of the institution shall, after verifying the
service particulars, forward the applications to the concerned
appointing authority along with complete service record of the
employee within 10 days from the last date of receipt of
application. The Secretary of the institution shall append a
certificate to the effect that the service particulars mentioned by
the employees are correct.
(3) The suitability of employees of various Non-Government Aided
Educational Institutions for appointment on the various posts
under these rules shall be adjudged by the screening committee
comprising of :--
(a) in the case of post within the purview of the Commission --
(i) Chairman of the Commission or his Chairman
nominee
(8 of 21) [CW-18382/2011]
(ii) Principal Secretary, Department of Member
Personnel or his nominee not below the
rank of Dy. Secretary
(iii) Principal Secretary of the concerned Member
Department or his nominee not below the
rank of Dy. Secretary
(iv) Director of the concerned Department Member
Secretary
(b) in the case of post not within the purview of the
Commission --
(i) Director of the concerned Department Chairman
or his nominee
(ii) Concerned appointing authority Member
Secretary
(4) The committee after adjudging the suitability of the
candidates shall forward the name(s) of the suitable
candidate(s) to the concerned appointing authority for
appointment."
Similarly Rule 5 of the Rules of 2010 deals with the terms
and conditions for appointment of employees in Government
service and the same is reproduced as under:-
"5. Terms and condition for appointment of
employees in Government Service.--The regularly appointed
existing employees in the No.- Government Aided Educational
Institutions who are working against sanctioned aided post on
the date of commencement of these rules shall be appointed
under the Rajasthan Voluntary Rural Education Service on the
following terms and conditions, namely :--
(i) The employee should possess the requisite educational and
professional qualification for the respective posts as per the
relevant service rules applicable to the Government servant of
similar cadre.
(ii) The posts on which the employees shall be appointed in the
Government shall constitute a separate dying cadre for each
category of employees.
(iii) The appointed employees shall be posted only in the
colleges/ schools, as the case may be, in the rural areas on the
equivalent posts specified in column number 2 of the Schedule.
However, in case there is no such equivalent post in the
government, they shall be appointed on other posts carrying the
same pay scale of aided posts:
[Provided further that in the case of non-teaching staff,
screened for appointment on non-teaching posts in College
Education Section and posts for posting in rural areas are not
available, such person shall be appointed on any equivalent
(9 of 21) [CW-18382/2011]
post in rural areas in any other department governed by these
rules. Such person shall be deemed to be appointed in the
new department from the date of joining in the Directorate of
College Education.]
(iv) The employees appointed under these rules shall not be
entitled for any promotion till they attain the age of
superannuation. However, they shall be allowed benefit of
Assured Career Progression/Career Advancement Scheme as
allowed to other employees of the State Government. The
period from the date of their appointment on the sanctioned
and aided posts would be counted for the purpose of grant of
Assured Career Progression/Career Advancement Scheme.
(v) The posts shall be automatically abolished as and when the
posts become vacant for any reason whatsoever i.e. on account
of superannuation/ voluntary retirement / termination of service
/ death while in service/resignation of the employee etc.
(vi) The salary of all the appointed employees shall be fixed on
the basis of the salary as drawn at the time of appointment as
per the Sixth Pay Commission with effect from the date they
join in the government under these rules. Those who are
drawing salary in Rajasthan Civil Services (Revised Pay Scale)
Rules, 1998, Rajasthan Civil Services (Revised Pay Scales) for
Government College Teachers including Librarian and PTI
Rules, 1999 and Rajasthan Civil Services Revised Pay Scales
for Government Polytechnic College Teachers, Librarians and
Physical Training Instructors Rules, 2001 shall be allowed
benefit of Rajasthan Civil Services (Revised Pay) Rules, 2008,
Rajasthan Civil Services (Revised Pay Scales) for Government
College teachers including Librarian and PTI Rules, 2009 and
Rajasthan Civil Services (Revised Pay Scales) for Government
Polytechnic College Teachers, Librarians and Physical Training
Instructors Rules, 2010 respectively with effect from the date
they join in the Government after appointment under these
rules.
(vii) No arrears on any account whatsoever, (including arrears
of salary, selection scale, Assured Career Progression or Career
Advancement Scheme) shall be paid by the State Government
for the period prior to the date of their joining in the
Government after appointment under these rules.
(viii) Carry forward of the balance of Privilege Leave shall not
be allowed. Employees shall be free to get payment of
encashment of balance of P. L. from the respective grant-in-aid
educational institutions.
[(ix) The persons who are appointed in the government service
under these rules shall be governed by the provisions of the
Rajasthan Civil Services (Contributory Pension) Rules, 2005
and the Provision of the Rajasthan Civil Service (Pension)
Rules, 1996 shall not be applicable to them. Contributory
Provident Fund Contribution, if not deposited by the Non-
(10 of 21) [CW-18382/2011]
Government Aided Educational Institutions for the period prior
to the date of their joining in the government after
appointment under these rules, shall not be paid by the State
Government.]
(x) The period of service in the aided institutions shall not be
counted for payment of gratuity, The employees shall be free
to obtain payment of gratuity from the respective grant in aid
educational institution.
(xi) Each employee shall be required to execute an
undertaking, in Form - II, that he/she voluntarily accepts all
the terms and conditions of service prescribed under these
rules and agrees to serve in the government educational
institutions situated in the rural areas till attaining the age of
superannuation in the service of Government."
Bare reading of Rules 4 and 5 of the Rules of 2010 clearly
indicate that a regularly appointed employee in Non-Government
Aided Educational Institution (for short 'NGEI') working on a
sanctioned and approved post can be given appointment on
certain terms and conditions.
Rule 2(g) of the Rules of 2010 defines the word "employee",
which is reproduced as under:-
"Rule 2(g) "employee" means an employee working in a
recognized non-government aided educational institution and
who is working against aided and sanctioned post."
As per Rule 2(g), the employee means an employee working
against the aided and sanctioned post.
Now the core question is "Whether the petitioner was
working against the aided and sanctioned post?"
Admittedly, the petitioner was appointed in the respondent-
College on 17.07.1986 on the post of Lecturer (Psychology) on
probation. On completion of probation period, her services were
confirmed on 15.12.1987. On 13.03.1992, the University of
Rajasthan passed an order of approval of above appointment of
the petitioner subject to the condition that she would obtain
degree in M.Phil. in the respective subject of Post-Graduation and
(11 of 21) [CW-18382/2011]
she passed the same. On 20.02.1993, her services were
terminated by the respondent-College and she submitted an
appeal before the RNGEI Tribunal and the same was allowed on
02.05.2001 and her order of termination was quashed and a
direction was issued to the respondent-College to reinstate her
with all benefits and on 20.07.2001, she was allowed to join.
In the meantime, the RNGEI Rules, 1993 came into effect
and the Government took a decision to grant 70% aid to the
respondent- College vide order dated 11.01.1994. And on
08.02.1996 the Government approved and sanctioned the
appointment of (1) Smt. Reena Shekhawat (2) Neelam Krishnaiya
(3) Preeti Singh and (4) Dr. Manorama Tyagi on the post of
Lecturer (Psychology) as the Screening Selection Committee
approved the selection of the above four persons in its meeting
dated 11.12.1995, meaning-thereby there were only four
sanctioned, aided and approved posts of Lecturer in Psychology in
the respondent-College upon which aid was given by the
Government and the names of the above four persons were
approved and sanctioned by the Government.
On 30.08.2001, the Joint Director (Law) College Education,
Rajasthan, Jaipur, wrote a letter (Annexure R/2/1) to the
Secretary of the respondent- College in which it has been
mentioned that following four Lecturers are working on the
approved, aided and sanctioned post:-
Sr. No. Name Date of Appointment
1. Smt. Reena Shekhawat 11.12.1995
2. Smt. Priti Singh 11.12.1995
3. Dr. Manorama Tyagi 11.12.1995
4. Smt. Neelam Krishnaiya 26.02.1996
(12 of 21) [CW-18382/2011]
It was specifically mentioned in the aforesaid letter dated
30.08.2001 that no aid was given to the post of the petitioner.
Thus, the respondent- College is liable and responsible for the
post of the petitioner. Hence, it is clear that the petitioner was not
working on the sanctioned, approved and aided post of Lecturer
(Psychology) in the College of the respondent No.2. This letter
dated 30.08.2001 was well within the knowledge of the petitioner
but the petitioner has not challenged the validity of the same and
it appears that the petitioner has accepted the contents of this
letter. Hence, the petitioner is estopped to raise the claim now
that she is working on the sanctioned, approved and aided post of
Lecturer (Psychology) since 01.04.1994.
It is the case of the respondent- College that the post of the
petitioner was neither sanctioned nor approved by the
Government. The respondent- College came in the list of the aided
institutions w.e.f. 01.04.1994 but even then the post of the
petitioner was never sanctioned nor aided.
Chapter V of the RNGEI Rules, 1993 deals with general
conditions of service.
Rule 26 of the RNGEI Rules, 1993 deals with recruitment of
employees in recognized institution. Rules 27 and 28 of the RNGEI
Rules, 1993 deals with approval of appointment which are
reproduced as under:-
"26. Recruitment.- Recruitment of employees in a recognised
institution shall be made on merit, either after open advertisement in a
local daily news paper having a wide circulation or from amongst the
candidates sponsored by the employment exchange, in the manner
prescribed here under :-
(a) The following details shall be included in the advertisement to be
published in the news paper :-
(i) Name & number of posts,
(ii) Required qualifications,
(13 of 21) [CW-18382/2011]
(iii) Pay Scales,
(iv) Required experience,
(v) Other qualifications,
(vi) Minimum and maximum age on a specific date,
(vii) Number of post/posts reserved for Scheduled Caste/Tribes
candidates.
(b) The qualifications shall be as prescribed by the Government for
similar category of employees in Government educational
institutions except for the post of Organising Secretary for which
the qualifications shall be as under :-
I. Management Graduate with 5
having three or years experience
more institutions as Organizing
with approved Secretary in
expenditure of Rs. institutions of
20 Lakhs and Category II,
above, per annum below.
II Managements Sr. Secondary
. having three or Pass
more institution
with approved
expenditure of Rs.
10 Lakhs or above
but below Rs. 20
lakhs, per annum
(c) All application received in response to the advertisements shall
be scrutinized by the Secretary of the managing committee who
shall prepare a list of eligible candidates and summon them for
interview by the selection committee,
(d) The selection committee shall consist of the following :-
(i) Two representatives of the Managing Committee.
(ii) Head of the concerned institution.
(iii) One officer nominated by the Director of Education.
For Colleges two experts/Educationists in case of
selection for the post of Principal and one educationist
expert in case of other post as nominated by the
concerned University shall also be included in the
selection Committee besides the above members.
(e) The nominee of the Director of Education to be a member of the
Selection Committee shall be as follows :-
S. Name of Institution Status of
No. Posts Departmental
Officer
1 Principal Degree and Shastri Joint Director of
(14 of 21) [CW-18382/2011]
Colleges Education
2 Principal Post-Graduate College The Director of
and Acharya Colleges Education
3 Lecturers/ Degree and P.G. Colleges Joint Director of
Head of (General and Sanskrit) Education
the
Departme
nts
4 Headmast Secondary, Upper Joint Director of
er/Principa Primary Schools, Education (P and
l including Praveshika and S and Sanskrit)
Upadhyaya
5 Lecturers Sr. Secondary Schools, Addl. D.E.O./Dy.
School including Upadhyaya D.E.O. Or
Education Inspector of
Sanskrit
Education
6 Senior Secondary, Upper Headmaster/Prin
Teachers Primary Schools, cipal, Sr.
Montessory and other Secondary
special Schools including School or
Praveshika and Purva Upadhyaya
Praveshika
7 Teachers All Institutions Dy.
D.E.O./Inspector
of Sanskrit
Education
8 Ministerial All Institutions Dy. D.E.O./
Staff Inspector of
Sanskrit
Education
9 Organising Secondary Schools of D.E.O./Inspector
Secretary Special and Central Office of Sanskrit
and other Education
post of
Special
institutions
(f) Reservation policy as laid down by the government and
instructions issued from time to time with regard to the
appointment of candidates belonging to Scheduled Castes and
Scheduled Tribes shall invariably by followed by the aided
institutions for all categories of services i.e. Teachers, Ministerial
and Class - IV employees etc.
(g) The Selection committee, after having interviewed all the
candidates shall prepare a penal of candidates arranging them in
order of merit and submit its recommendations for appointment to
the Managing Committee.
(15 of 21) [CW-18382/2011]
27. Approval of Appointments.- The Managing Committee shall,
within a fortnight of selection, forward the list of selected candidates,
with its recommendations, alongwith information in the following
proforma, to the competent authority as specified in Appendix - IX, for
its approval :
S.No. Name of the post Reasons for posts becoming vacant
Retirement Termination Resignation
Pay scale Name of Names of Names of Date of Qualificatio
of the post persons members persons birth ns
called for of the selected
interview Selection
Committee
Experien Norms Marks Date of Pay and Outstandi Remark
ce fixed by given by initial pay ng s, if any
the the appointm scales qualificati
Selection Selection ent ons/exper
Committe Committ ience
e for ee to
giving each
marks candidate
28. Approval by Competent Authority.- The competent Authority
may after -due consideration either approve the recommendations of
the Managing Committee or reject the same for reasons to be recorded
in writing."
The legality and constitutional validity of section 2(g) of the
Rules of 2010 was challenged before the Division Bench of this
Court in the case of Rajendra Prasad Sharma (supra) and the
same was upheld by this Court by observing in para nos. 4, 16,
23, 24, 25, 28, 44, 65, 66 and 67 as under:-
"4. The grievance of the petitioners is that the action of the
respondent-State in providing an option for absorption in the
government service, only to those employees of the Non-
Government Aided Educational Institutions working on aided
(16 of 21) [CW-18382/2011]
sanctioned posts, ignoring the employees working on non-
aided sanctioned posts of the Non-Government Aided
Educational Institutions, even though their appointment was
made by the very same Selection Committee(s), which
included a government nominee; is arbitrary, discriminatory
and violative of the mandate of the Article 14 and 16 of the
Constitution of India. The challenge has been made
specifically to Rule 2(g) of the Rules of 2010, promulgated
vide notification dated 29.11.2010, which reads thus:-
2(g). employee means an employee working in a
recognized non-government aided educational
institution and who is working against aided and
sanctioned post.
16. Mr. Rakesh Sharma, learned counsel for the petitioner in
D.B. Civil Writ Petition No.5641/2012 (Ghisa Ram Sharma
Versus State of Rajasthan & Ors.) adopting the submissions
made by the counsel preceding him, submitted that the
initial appointment of the petitioner, on the post of Lab
Assistant was against the sanctioned aided post, but the
institute declined to accept grant-in-aid w.e.f. 01.04.2008,
though the State Government did not stop the grant-in-aid
of the institution and therefore, the petitioner could not be
faulted for the action of the institution of the petitioner,
declining to avail the facility of grant-in-aid. The learned
counsel pointed out the instance of an employee of Bal
Bharati Kothari School, Sikar, which received grant-in-aid
upto 2010, and made an attempt to equate his case to that
of the employee of Bal Bharati Kothari School, Sikar, in
support of his claim, but the fact remains that the institution
(17 of 21) [CW-18382/2011]
of the petitioner did not avail of the grant-in-aid w.e.f.
01.04.2008.
23. The institution is under an obligation to file an
application by 31st May of each year to the Director of
Education as stipulated under Rule 17 of the Rules of 1993.
Rule 26 of the Rules of 1993 provides for procedure of
recruitment of an employee in a recognized institution.
Clause (d) of Rule 26 details out the constitution of the
Selection Committee and clause (f) of Rule 26 provides for
reservation policy, which shall be invariably followed by the
aided institutions for all categories of services. The
appointments made in accordance with the procedure
provided under Rule 26 of the Rules of 1993 are subject to
approval by the competent authority as per mandate of Rule
28 of the Rules of 1993 and it is only after the approval of
the competent authority, the Managing Committee may
make necessary appointment. The competent authority is
defined under Rule 2(f) of the Rules of 1993. Scruples
compliance of the Rules of 1993 may entitle an institution to
claim grant-in-aid from the State Government and the posts
are sanctioned by the Director of Education in accordance
with the provisions of Rule 17 of the Rules of 1993.
Therefore, an institution facilitated with grant-in-aid, is
obliged to accord appointment on a sanctioned post as per
procedure and subject to approval by the competent
authority under the Rules of 1993. Hence, the category of
employees so appointed constitutes a separate class.
24. The institutions are categorized under the advice of
Grant-in-aid Committee and are accorded grant-in-aid even
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to the extent of 80%. Further, the special category of the
institutions engaged in education on experimental and
pioneering lines, in accordance with the criteria laid down by
the Department of Education, the grant-in-aid may extend
upto 90%. Thus, the employees who are working against the
aided and sanctioned posts and major part of their
remuneration is provided by the State, they have been
allowed an option to enter the Government Service under
the Rules of 2010 whereas with reference to the employees
working on unaided posts, the State has no financial burden.
25. The object underlying the promulgation of the 'Rules of
2010' was/is to stop the grant-in-aid of such aided posts
where the employees opted for voluntary service under the
Rules of 2010, and the same is a dying cadre so as to relieve
the respondent-State of the financial burden.
28. Further, the provisions of the Act of 1989 and the Rules
of 1993, provide for grant-in-aid to the educational
institutions on submission of application in the prescribed
form and subject to fulfillment of certain conditions.
Moreover, grant-in-aid is sanctioned on yearly basis. There
is no privity of contract for employment between the State
and the Teachers since they are employees of the respective
educational institutions.
44. It is not in dispute that there exist two set of posts in the
Non-Government Aided Educational Institutions, one being
aided sanctioned posts and another being non-aided
sanctioned posts.
65. The State as a policy decision has decided, in the
backdrop of the fact that the employees, who are working on
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aided sanctioned post, a major part of their remuneration is
provided by the State and therefore, has restricted the entry
to the rural service under the Rules of 2010, keeping in view
the financial burden; cannot be faulted, for the reason that
the State Government will stop the grant-in-aid on such
posts whereas on the other hand the employees working on
non-aided sanctioned post, the State Government has no
financial burden to pay their salary and remuneration etc.
Further, Section 7 of the Act of 1989 is an enabling provision
and sufficient guidelines have been provided for the exercise
of the power. The reasons for exercise of the power are valid
and germane. As a one time measure, only those employees
of the Non-Government Aided Educational Institutions
working against aided and sanctioned posts, have been
accorded option to enter into the Government Service under
the Rules of 2010 as per the mandate of Rule 2(g).
66. Article 14 guarantees similarity of treatment contra-
distinguished from identical treatment. Mere differentiation
or inequality of treatment does not per se amount to
discrimination. There is no right to grant-in-aid since it
depends upon the financial resources and other relevant
considerations. The classification under the Rules of 2010 is
founded on an intelligible differentia with a rational relation
to the object sought to be achieved. The learned counsel for
the petitioners could not persuade us for any tenable reason,
pointing out any clear transgress of the constitutional
principle(s).
67. Thus, for the reasons and discussions detailed out
hereinabove, we have no hesitation in holding that Rule 2(g)
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of the Rules of 2010 issued vide notification dated
29.11.2010 is perfectly legal and valid."
The same question arose before this Court in the case of
Ravi Shankar Srivastava & Ors. (supra) and it was decided that
the employees who are working on non-aided posts, are not
entitled to claim any benefit to get appointment under the Rules of
2010. For ready reference, the view expressed by this Court is
reproduced as under:-
"In my opinion, an attempt has been made by the
Government to grant an opportunity to those employees
working in aided schools against aided posts, for which, the
Government is providing funds and finance. This action of
the Government is aimed at maintaining educational
standards in the rural areas also. Further, appointments on
aided posts is required to be made after following procedure
laid down in the rules; but, appointments on management
or other than aided posts, upon which, aided institutions are
not following the procedure laid down in the rules for
appointment, therefore, those employees cannot be treated
at par with the employees working against the aided posts
because, at the time of sanctioning funds and finance, there
is rider imposed by the Government that appointment to the
post shall be made while following the rules and
qualifications for the said post shall also be considered at the
time of providing appointment. In this view of the matter, if
any, benefit is extended to those employees who are
working in the aided schools against sanctioned aided posts,
then such benefit cannot be claimed by other employees
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who are working against management or other non-aided
posts."
Since the appointment of the petitioner was not as per
the provisions and procedure contained under Rules 26, 27 and 28
of the RNGEI Rules, 1993, hence, it cannot be said that the
petitioner was working on the approved, sanctioned and aided
post. The respondent- College was not getting any aid from the
government against the post of the petitioner. Since the petitioner
was not working on the approved and sanctioned post of Lecturer
(Psychology), hence, the petitioner is not entitled to get
appointment in government service under Rule 4 of the Rules of
2010.
In view of the discussions made herein above, there is no
merit in this petition and the same is accordingly dismissed.
Stay application as well as all pending application(s), if any,
also stand dismissed.
(ANOOP KUMAR DHAND),J
Sharma NK/32
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