KHETRI VIKAS SAMITI versus DIRECTOR COLLEGE EDUCATION, GOVERNMENT OF RAJASTHAN & ORS. on 9 May 2019

SUPREME COURT REPORTS

[2019] 7 S.C.R.

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KHETRI VIKAS SAMITI

v.

DIRECTOR COLLEGE EDUCATION, GOVERNMENT OFRAJASTHAN & ORS.

(Civil Appeal No. 4806 of 2019)

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MAY 09, 2019

[L. NAGESWARA RAO AND M. R. SHAH, JJ.]

Rajasthan Non-Government Educational Institutions Act,1989 – s.18 – Rajasthan Non-Government Educational InstitutionsC(Recognition, Grant-In-Aid and Service Conditions etc.) Rules,1993– r.39 – Private Respondents were engaged as Assistant/Labboy, sweeper, waterman and mechanic respectively in the non-Government College of the appellant – In 2003, the ManagingCommittee of the appellant, unanimously resolved to abolish theDabovesaid posts – Consequent to abolition of the said posts, therespondents were removed from their posts – Aggrieved, the privaterespondents filed an appeal before the Non-Government EducationalTribunal u/s. 19 – Tribunal set aside the order of removal of theprivate employees and directed their reinstatement and held that itwas mandatory to seek the prior approval of the Director ofEEducation before terminating the employees, as per s. 18 of the Act– Writ petition by the appellant – Writ petition was dismissed by theSingle Judge of High Court – Division Bench of High Courtconfirmed the decisions of the Single Judge of the High Court – Onappeal, held: s.18 of the Act and r. 39 of the Rules would not beFapplicable in case of removal of an employee due to abolition ofposts, more particularly when the post to which the employee wasworking was not aided and that his appointment was not approvedby the Education Department – Further, a communication dated25.01.2005 from the office of the Commissioner had clarified thatthere was no necessity for seeking Governmental approval for theGremoval of the employees, as the posts to which they were workingwere not aided posts and that their appointment was not approvedby the Education Department – Even as per the State Governmentalso, the prior approval of the State authorities was not required –Therefore, the impugned judgment and order passed by the Division H

Bench of the High Court, Single Judge of the High Court and theTribunal holding that the removal of the concerned employees washit by s.18 of the Act, unsustainable – Accordingly, the impugnedjudgment and order passed by the Division Bench of the High Court,Single Judge of the High Court and the Tribunal quashed and setaside.

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 non-Government College of the appellant – Managing Committee of theappellant abolished the said posts – Tribunal and the High Courtheld the abolition of posts bad in law – On appeal, held: ManagingCommittee of the appellant was facing financial constraints andrunning in heavy losses – There was no finding that the decision ofthe Management to abolish posts was malafide and/or with theoblique motive – Further, the question before the Tribunal was withrespect to the removal and not with respect to abolition of the posts– Also, the entire financial position of the appellant was notconsidered by the High Court – Therefore, in absence of challengeto the Managing Committee to abolish the posts in question andnon-consideration of the financial position of the appellant –Reasoning given by the Tribunal and the High Court to hold theabolition of posts bad in law, unsustainable.

Allowing the appeals, the Court

Conclusion

Allowing the appeals, the Court

HELD: 1. On a fair reading of Section 18 of the RajasthanNon-Government Educational Institutions Act, 1989 and Rule39 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 andRule 39 would not be applicable in case of removal of an employeedue to the abolition of posts, more particularly when the post towhich the employee is working was not aided and that hisappointment was not approved by the Education Department. Inthe case of Shri Maheshwari Senior Higher Secondary School v.Bhikha Ram Sharma , this Court has specifically observed andheld that in case of termination of the service of the employee A

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Adue to abolition of post, the question of conducting the enquiryunder the Rules does not arise. Though the said decision wascited and relied upon by the counsel appearing on behalf of theappellant before the Division Bench of the High Court, theDivision Bench thereafter has not at all dealt with and/orconsidered the same. Therefore, the Tribunal, Single Judge andBDivision Bench of the High Court have materially erred inapplying Section 18 of the Act and in holding the removal of theconcerned employees which as such was due to the abolition ofthe posts was hit by Section 18 of the Act. At this stage, it isrequired to be noted that even the State Government also madeCits stand clear before the Single Judge vide letter dated25.01.2005 which was placed before the Single Judge pursuantto the order passed by the High Court, in which it was specificallystated that there is no necessity for seeking Government approvalfor the removal of the employees, as the posts to which they were working were not aided posts and that their appointmentDwas not approved by the Education Department. The Single Judgehas refused to take into consideration the communication dated25.01.2005 on the ground that the said communication was notplaced before the Tribunal. The said communication could nothave been produced before the Tribunal as the said communicationEwas after the decision of the Tribunal. When the saidcommunication was placed on record by way of an additionalaffidavit and that too pursuant to the direction issued by the SingleJudge, the Single Judge ought to have considered the same.Therefore, even as per the State Government also, the priorapproval of the State authorities was not required. Therefore,Fthe impugned judgment and order passed by the Division Benchof the High Court, Single Judge of the High Court and the Tribunalholding that the removal of the concerned employees was hit bySection 18 of the Act, cannot be sustained and the same deservesto be quashed and set aside. [Para 11.2] [652-B-H; 653-A-B]G2. Now, so far as question, namely whether the Tribunaland the Single Judge were justified in holding the abolition ofposts bad in law is concerned, it is required to be noted that aconscious decision was taken by the Managing Committee ofthe institution/Management to abolish the posts as the institution/

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Management was facing the financial constraint and running inheavy losses. Therefore, unless and until the said decision isfound to be arbitrary and/or mala fide and/or with some obliquereason, it was not open for the Tribunal and/or the High Court tointerfere with such decision of the Management to abolish theposts. Considering the reasoning given by the High Court andthe Tribunal as such there is no specific finding that the decisionof the Management to abolish the posts was mala fide and/orwith the oblique motive. It is required to be noted that thequestion before the Tribunal was with respect to the removaland not with respect to abolition of the posts. The decision ofthe Management/Managing Committee to abolish the post wasnot under challenge. Therefore, in absence of challenge to thedecision of the Managing Committee to abolish the posts inquestion, it was not open for the Tribunal and/or the High Courtto hold that abolition of posts was bad in law. [Para 12] [653-B-E]

3. Even otherwise, on merits also, the decision of the HighCourt in holding the abolition of posts bad in law, cannot besustained. The Single Judge of the High Court has held theabolition 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 Managementwas weak which warranted abolition of posts. However, it isrequired to be noted that before the Single Judge the entirefinancial position/balance-sheet was not placed before the HighCourt. Merely some grant might have been received by theinstitution/Management and/or the Management might havereceived the fees from the students, unless and until the balance-sheet and the entire expenditure are considered, it was not openfor the High Court to come to the conclusion that the financialcondition was not such poor which warranted the abolition ofposts. Therefore, even the reasoning given by the High Court tohold 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 SCR466 – relied on.

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ACase Law Reference

[1996] 2 SCR 466relied onPara 5.2

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4806of 2019.

BFrom the Judgment and Order dated 15.12.2016 of the HighCourt of Judicature for Rajasthan Bench at Jaipur in D.B. Special Appeal(Writ) No.808 of 2005.

With

Civil Appeal Nos. 4808, 4807, 4809 of 2019.C

Shubhranshu Padhi, Ms. Gursimran Dhillon, P. Kavin Prabhu,Advs. for the Appellant.

Ms. Padhmalakshmi Iyengar, AAG, Milind Kumar, Ramjee Pandey,Ms. Alpana Pandey Advs. for the Respondents.

DThe Judgment of the Court was delivered by

M. R. SHAH, J.

1. Leave granted in all the Special Leave Petitions.

2. As common question of law and facts arise in this group ofEappeals and, as such, they arise out of the impugned common judgmentand order passed by the High Court, all these appeals are being decidedand disposed of by this common judgment and order.

3. Feeling aggrieved and dissatisfied with the impugned commonjudgment and order dated 15.12.2016 passed by the Division Bench ofFthe High Court of Judicature at Rajasthan, Bench at Jaipur in D.B. SpecialAppeal Writ No. 735/2005, 764/2005, 807/2005 and 808/2005 by whichthe High Court has dismissed the said appeals preferred by the appellantherein and has confirmed the common judgment and order passed by thelearned Single Judge of the High Court dismissing the respective writpetitions and confirming the order passed by the learned Non-GovernmentGEducational Institutions Tribunal, Jaipur directing the appellant to reinstatethe private respondents herein, original appellant-writ petitioner-KhetriVikas Samiti has preferred the present appeals.

4. For the sake of convenience, the facts of Civil Appeal arisingout of SLP (C) No. 11712 of 2017, arising out of the impugned judgmentHand order passed by the Division Bench of the High Court in Special

Appeal Writ No. 808/2005 are considered, which in nutshell are as under:

That the appellant herein-original writ petitioner is a societyregistered under the Rajasthan Societies Registration Act, 1958 which isrunning several educational institutions, including one Vinodini P.G. College,a non-Governmental Educational Institution. That the private respondentherein was engaged as a Lab Assistant/Lab Boy on 01.04.1999 in theaforesaid non-Government College of the appellant on a purely temporarybasis. Similarly, other private respondents in the connected matterswere engaged as Sweeper, Mechanic and Waterman respectively. Thaton 20.07.2003, the Managing Committee of the appellant, after consideringthe fact that the institution was running in heavy losses, unanimouslyresolved to abolish the posts of Lab Assistant/Lab Boy, Sweeper,Waterman and Mechanic. It was also decided that the institution will paysalary of six months which will be deposited in the bank accounts ofthose employees. That, in view of the abolition of the posts, vide orderdated 29.07.2003, the respondent was removed from his post. Similarorders were passed for other six employees as per the resolution of theManagement Committee. The respective employees were also paid thesix months salary.

4.1 Aggrieved by the order dated 29.07.2003, the private respondentfiled an appeal before the Non-Government Educational Tribunal, Jaipur(hereinafter referred to as the ‘learned Tribunal’) under Section 19 ofthe Rajasthan Non-Government Educational Institutions Act, 1989(hereinafter referred to as the ‘Act’), being Appeal No. 56 of 2003.Other employees also preferred respective appeals before the learnedTribunal. It was the case on behalf of the respective original applicants-employees that as, before the termination, a prior approval of the Directoras required under Section 18 of the Act, has not been obtained andtherefore their termination is bad in law and in violation of Section 18 ofthe Act. On the other hand, it was the case on behalf of the Managementthat as the termination took place only as a result of abolition of the posts,Section 18 of the Act shall not be applicable/attracted and prior approvalof the State authorities was not necessary.

4.2 That, by common judgment and order dated 07.12.2004, thelearned Tribunal set aside the orders of removal of the private respondentsherein-employees and directed their reinstatement holding that it wasmandatory to seek the prior approval of the Director of Education beforeterminating the employees, as per Section 18 of the Act, and as no such A

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Aprior approval was taken, the termination of the concerned employees isbad in law. That being aggrieved by the order dated 07.12.2004 passedby the learned Tribunal, the appellant herein-original writ petitioner filedwrit petitions before the High Court, which came to be dismissed by thelearned Single Judge of the High Court vide common judgment and orderdated 18.07.2005.B

4.3 At this stage, it is required to be noted that before the HighCourt, vide letter dated 25.01.2005 the Office of the Commissioner, CollegeEducation, Rajasthan clarified that there was no necessity for seekingGovernment approval for the removal of the employees, as the posts towhich they were working were not aided posts and that their appointmentCwas not approved by the Education Department. That, on 08.04.2005,the Commissioner, College Education issued a letter calling upon theappellant and other similarly placed institutions to close the uneconomicalsubjects and remove their surplus employees.

4.4 By the judgment and order dated 18.07.2005, the learned SingleDJudge dismissed the respective writ petitions holding that it was mandatoryfor the Institution/Management to have obtained written prior consent/approval of the Director, Education before removing the respondents-employees. The learned Single Judge also did not consider thecommunication dated 25.01.2005 of the Commissioner, College Education,ERajasthan on the ground that the said documents were not part of therecord before the learned Tribunal.

4.5 Feeling aggrieved and dissatisfied with the common judgmentand order passed by the learned Single Judge of the High Court dismissingthe writ petitions, the appellant herein preferred the D.B. Special AppealsFbefore the Division Bench of the High Court. By the impugned commonjudgment and order dated 15.12.2016, the Division Bench of the HighCourt has dismissed the appeals and has confirmed the common judgmentand order passed by the learned Single Judge of the High Court. Feelingaggrieved and dissatisfied thereby, the Management has preferred thepresent appeals.G

5. Shri Shubhranshu Padhi, learned Advocate has appeared onbehalf of the Management; Ms. Padhmalakshmi Iyengar, learned AAGhas appeared on behalf of the respondent-State authorities and ShriRamjee Pandey, learned Advocate has appeared on behalf of the privaterespondents-respective employees.H

5.1 Shri Padhi, learned advocate appearing on behalf theManagement has vehemently submitted that, in the facts andcircumstances of the case, the High Court has committed a serious errorin dismissing the appeals and confirming the judgment and order passedby the learned Single Judge approving/confirming the order passed bythe learned Tribunal directing the appellant to reinstate the privaterespondents.

5.2 It is further submitted by the learned counsel appearing onbehalf of the appellant that the High Court has not properly appreciatedand considered the fact that as it was a case of abolition of posts whichresulted in removal of the concerned employees, Section 18 of the Actshall not be applicable/attracted at all. It is submitted that the High Courthas failed to appreciate and consider the fact that Section 18 of the Actwould not be attracted as no penal action had been taken against theconcerned employees, as the termination took place only as a result ofthe abolition of posts. It is submitted by the learned counsel appearing onbehalf of the appellant that as held by this Court in the case of ShriMaheshwari Senior Higher Secondary School v. Bhikha RamSharma (1996) 8 SCC 22, in case of termination of service of anemployee due to abolition of post, the question of conducting the enquiryunder the Rules does not arise. It is submitted that despite the aforesaiddecision was cited before the Division Bench of the High Court, theDivision Bench has not at all dealt with and considered the same. It isfurther submitted that even the Division Bench has not at all consideredthe other decisions which are cited and relied upon by the counselappearing on behalf of the appellant-Management.

5.3 It is further submitted by the learned counsel appearing onbehalf of the appellant that, as such, while deciding the appeals, the DivisionBench of the High Court has not at all dealt with and considered in detailthe specific case on behalf of the appellant-Management that in case ofabolition of post and the consequent action of removal, Section 18 of theAct shall not be applicable. It is submitted that, however, erroneouslythe Division Bench of the High Court has observed that no such contentionwas raised before the learned Tribunal or before the learned Single Judgeand the same has been raised for the first time before the Division Bench.It is submitted that in fact it was the case on behalf of the Managementright from the beginning and even before the learned Tribunal that, in thefacts and circumstances of the case, Section 18 of the Act shall notapplicable at all.

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A5.4 It is further submitted by the learned counsel appearing onbehalf of the appellant that even the learned Single Judge committed aserious error in not considering the communications dated 25.01.2005and 08.04.2005 received from the Office of the Commissioner, CollegeEducation, Rajasthan on the ground that the said communications werenot placed before the learned Tribunal. It is submitted that naturally theBaforesaid two communications could not have been produced before thelearned Tribunal as the same were subsequent to the decision of theTribunal dated 07.12.2004. It is submitted that, however, the learnedSingle Judge and even the Division Bench of the High Court ought tohave considered the aforesaid two communications and the stand of theCState Government whether in case of abolition of posts and/or the poststo which the respective workers were working were not aided posts andtheir appointment was not approved by the Education Department, theprior approval/approval for removal of such employees was not required.

5.5 It is further submitted by the learned counsel appearing onDbehalf of the appellant that the Division Bench of the High Court has notat all appreciated and/or considered the fact that neither the learnedTribunal nor the High Court was justified in holding that the abolition ofposts was erroneous and/or bad in law.

5.6 It is submitted by the learned counsel appearing on behalf ofEthe appellant that a conscious decision was taken by the Management toabolish the respective posts as the institution was running in heavy losses.It is submitted that therefore a conscious decision was taken to abolishthe temporary posts. It is submitted that merely because the Managementmight have received some grant from the State Government and/or someamount from the students as fees, unless and until the entire balance-Fsheet is considered and/or the entire financial position of the institution isconsidered, the learned Single Judge ought not to have held the abolitionof posts as bad in law by observing that the financial conditions of theUniversity did not warrant abolition of the posts.

5.7 It is further submitted by the learned counsel appearing onGbehalf of the appellant that accordingly the learned Single Judge of theHigh Court has committed a grave error in observing and holding that asthe respective employees were paid six months’ salary which wasdeposited in their respective bank accounts, the Management was requiredto follow the procedure as per Rule 39 of the Rajasthan Non-Government H

Educational Institutions (Recognition, Grant-In-Aid and Service Condtionsetc.) Rules, 1993 (hereinafter referred to as the ‘1993 Rules’) and itwas essential for the Management to receive written consent of theEducation Department. It is submitted that merely because to be on asafer side, the Management might have paid/deposited the six months’salary, the same should not go against the Management and, by thatitself, Section 18 of the Act and Rule 39 of the 1993 Rules shall be madeapplicable. It is submitted that what is required to be considered whetherin a case of abolition of posts, prior approval of the Commissioner as perSection 18 of the Act is required or not. It is submitted that thereforeboth, the learned Single Judge and the Division Bench of the High Courthave committed a serious error in making Section 18 of the Act and/orRule 39 of the 1993 Rules applicable to the facts of the case.

5.8 Making the above submissions, it is prayed to allow the presentappeals.

5.8 Making the above submissions, it is prayed to allow the presentappeals.

6. The present appeals have been vehemently opposed by ShriRamjee Pandey, learned counsel appearing on behalf of the respectiveemployees. It is vehemently submitted by Shri Pandey, learned counselappearing on behalf of the respective employees that, as the resultanteffect of abolition of posts was removal of the concerned employeesfrom service, Section 18 of the Act would be applicable. It is submittedthat therefore, as such, no error has been committed by the High Courtin holding that the removal/termination was hit by Section 18 of the Act.It is further submitted that, even otherwise, on merits also, the learnedTribunal as well as the learned Single Judge have specifically observedand held that the abolition of posts was bad in law. It is submitted,therefore, once the abolition of posts was held to be bad in law, therewas no further question to be considered whether prior to removal theapproval/consent of the Director/State authorities is required or not.

6.1 It is further submitted that there are concurrent findings of allthe Courts below on the applicability of Section 18 of the Act and,therefore, the same is not required to be interfered with by this Court.6.2 Making the above submissions, it is prayed to dismiss thepresent appeals.

7. Learned AAG appearing on behalf of the State has reiteratedon the communication dated 25.02.1005 and has submitted that as the A

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Aposts to which the respective employees were working were not aidedposts and their appointment was not approved by the EducationDepartment, there was no necessity for seeking Government approvalfor the removal of such employees.

8. Heard learned counsel appearing on behalf of the respectiveBparties at length and perused/considered the orders passed by the leanedTribunal, learned Single Judge of the High Court as well as the impugnedcommon judgment and order passed by the Division Bench of the HighCourt.

9. At the outset, it is required to be noted that all the respectiveCemployees were appointed and working on a purely temporary basis.That a conscious decision was taken by the Management to abolish theposts on which the respective employees were working, namely LabAssistant/Lab Boy, Sweeper. Waterman and Mechanic. A consciousdecision was taken by the Management to abolish the temporary post/posts in question on the ground that the institution was running in heavyDlosses. Consequent upon the abolition of posts, the respective employeeswere removed from the services. The respective employees were alsopaid six months’ salary which was deposited in the bank accounts of theconcerned employees. Learned Tribunal as well as the learned SingleJudge directed the reinstatement of the respective employees and setEaside the removal on the ground inter alia that: (i) before removal theprior consent/approval of the State authorities was not taken as requiredunder Section 18 of the Act and (ii) that the abolition of posts was bad inlaw. The judgment and order of the learned Tribunal as well as thelearned Single Judge of the High Court have been confirmed by theDivision Bench of the High Court by the impugned common judgmentFand order.

10. From the common judgment and order passed by the DivisionBench of the High Court, it appears that the learned Division Bench hasnot at all given any reasons on the applicability of Section 18 of the Actin a case where the removal of the concerned employees was due toGabolition of posts. In Paragraph 14, the Division Bench of the HighCourt has observed that no such contention was raised before the Tribunalor before the learned Single Judge and it has been raised for the firsttime. The aforesaid finding does not seem to be true. From the decisionof the Tribunal as well as the learned Single Judge, it emerges that from H

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the very beginning the case on behalf of the Management was that asthe removal of the employees was due to abolition of posts, Section 18of the Act shall not be attracted. Be that as it may, we propose toconsider independently the issue with respect to the applicability ofSection 18 of the Act in a case where the removal was due to abolitionof the posts. Therefore, the questions which are posed for considerationof this Court are whether: (i) in case of removal due to abolition of postsand more particularly when the respective employees were working ontemporary basis and the posts were not approved/sanctioned and theirappointments were not approved by the Education Department and theposts to which they are working were not aided posts, Section 18 of theAct would be applicable and (ii) whether the learned Tribunal and thelearned Single Judge were justified in holding the abolition of posts badin law?

11. While considering Question No. 1 referred to hereinabove,the relevant provisions of the Act and 1993 Rules are required to bereferred to.

11.1 Section 18 of the Act and Rule 39 of the 1993 Rules read asunder:

“18. Removal, dismissal or reduction in rank ofemployees.- Subject to any rules that may be made in this behalf,no employee of a recognised institution shall be removed, dismissedor reduced in rank unless he has been given by the managementa reasonable opportunity of being heard against the action proposedto be taken.

Provided that no final order in this regard shall be passed unlessprior approval of the Director of Education or an officer authorisedby him in this behalf has been obtained.

Provided further that this section shall not apply, -

(i) to a person who is dismissed or removed on the ground ofconduct which led to his conviction on a criminal charge;or

(ii) where it is not practicable or expedient to give that employeean opportunity of showing cause, the consent of Directorof Education has been obtained in writing before the actionis taken; or A

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(iii) where the managing committee is of unanimous opinionthat the services of an employee cannot be continuedwithout prejudice to the interest of the institution, theservices of such employee are terminated after giving himsix months notice or salary in lieu thereof and the consentof the Director of Education is obtained in writing.”

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Rule 39:

“39. Removal or Dismissal from Service.- (1) The servicesof an employee appointed temporarily for six months, may beterminated by the management at any time after giving at leastone month’s notice or one month’s salary in lieu thereof. Temporaryemployee, who wishes to resign shall also give atleast one month’snotice in advance or in lieu thereof deposit or surrender one month’ssalary to the management.

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(2) An employee, other than the employee referred to in sub-rule(1), may be removed or dismissed from service on the grounds ofinsubordination, inefficiency, neglect of duty, misconduct or anyother grounds which makes the employee unsuitable for furtherretention in service. But the following procedure shall be adoptedfor the removal or dismissal of an employee :

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(a) A preliminary enquiry shall be held on the allegationscoming into or brought to the notice of the managementagainst the employee; E

(b) On the basis of the findings of the preliminary enquiryreport, a charge sheet alongwith statement of allegationsshall be issued to the employee and he shall be asked tosubmit his reply within a reasonable time; F

(c) After having pursued the preliminary enquiry report andthe reply submitted by the employee, if any, if the managingcommittee is of the opinion that a detailed enquiry isrequired to be conducted, a three member committee shallGbe constituted by it in which a nominee of the Director ofEducation shall also be included; (d) During the enquiry by such enquiry committee theemployee shall be given a reasonable opportunity of being H

heard and to defend himself by means of writtenstatement as well as by leading evidence, if any;

(e) The enquiry committee, after completion of the detailedenquiry, shall submit its report to the managementcommittee; (f)If the managing committee, having regard to the findingsof the enquiry committee on the charges, is of the opinionthat the employee should be removed or dismissed fromservice, it shall -

(i) furnish to the employee a copy of the report of theenquiry committee,

(ii) give him a notice stating the penalty of removal ordismissal and call upon him to submit within a specifiedtime such representation as he may wish to make onthe proposed penalty; (g) In every case, the records of the enquiry together with acopy of notice given under sub-clause (f)(ii) above andthe representation made in response to such notice if any,shall be forwarded by the managing committee to theDirector of Education or an officer authorised by him inthis behalf, for approval; (h) On receipt of the approval as mentioned in sub-clause (g)above, the managing committee may issue appropriateorder of removal or dismissal as the case may be andforward a copy of such order to the employee concernedand also to the Director of Education or the officerauthorised by him in this behalf :

Provided that the provisions of this rule shall not apply -

(i) to an employee who is removed or dismissed on theground of conduct which led to his conviction on acriminal charge, or

(ii) where it is not practicable or expedient to give thatemployee an opportunity of showing cause, the consentof the Director of Education has been obtained inwriting before the action is taken, or A

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(iii) where the managing committee is of unanimousopinion that, the services of an employee cannot becontinued without prejudice to the interest of theinstitution, the services of such employee areterminated after giving him six months notice or salaryin lieu thereof and the consent of the Director ofEducation is obtained in writing.”

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11.2 On a fair reading of Section 18 of the Act and Rule 39 of the1993 Rules, we are of the opinion that Section 18 of the Act and Rule 39would not be applicable in case of removal of an employee due to theabolition of posts, more particularly when the post to which the employeeCis working was not aided and that his appointment was not approved bythe Education Department. In the case of Bhikha Rm Sharma (supra),this Court has specifically observed and held that in case of terminationof the service of the employee due to abolition of post, the question ofconducting the enquiry under the Rules does not arise. Though theDsaid decision was cited and relied upon by the counsel appearing onbehalf of the appellant before the Division Bench of the High Court, theDivision Bench thereafter has not at all dealt with and/or considered thesame. Therefore, the learned Tribunal, learned Single Judge and learnedDivision Bench of the High Court have materially erred in applyingSection 18 of the Act and in holding the removal of the concernedEemployees which as such was due to the abolition of the posts was hitby Section 18 of the Act. At this stage, it is required to be noted thateven the State Government also made its stand clear before the learnedSingle Judge vide letter dated 25.01.2005 which was placed before thelearned Single Judge pursuant to the order passed by the High Court, inFwhich it was specifically stated that there is no necessity for seekingGovernment approval for the removal of the employees, as the posts towhich they were working were not aided posts and that their appointmentwas not approved by the Education Department. The learned SingleJudge has refused to take into consideration the communication dated25.01.2005 on the ground that the said communication was not placedGbefore the learned Tribunal. The said communication could not havebeen produced before the learned Tribunal as the said communicationwas after the decision of the learned Tribunal. When the saidcommunication was placed on record by way of an additional affidavitand that too pursuant to the direction issued by the learned Single Judge,Hthe learned Single Judge ought to have considered the same. Therefore, even as per the State Government also, the prior approval of the Stateauthorities was not required. Therefore, the impugned judgment and orderpassed by the Division Bench of the High Court, learned Single Judge ofthe High Court and the learned Tribunal holding that the removal of theconcerned employees was hit by Section 18 of the Act, cannot be sustainedand the same deserves to be quashed and set aside.

12. Now, so far as question No. 2, namely whether the learnedTribunal and the learned Single Judge were justified in holding the abolitionof posts bad in law is concerned, it is required to be noted that a consciousdecision was taken by the Managing Committee of the institution/Management to abolish the posts as the institution/Management wasfacing the financial constraint and running in heavy losses. Therefore,unless and until the said decision is found to be arbitrary and/or mala fideand/or with some oblique reason, it was not open for the learned Tribunaland/or the High Court to interfere with such decision of the Managementto abolish the posts. Considering the reasoning given by the High Courtand the Tribunal as such there is no specific finding that the decision ofthe Management to abolish the posts was mala fide and/or with theoblique motive. It is required to be noted that the question before thelearned Tribunal was with respect to the removal and not with respect toabolition of the posts. The decision of the Management/ManagingCommittee to abolish the post was not under challenge. Therefore, inabsence of challenge to the decision of the Managing Committee toabolish the posts in question, it was not open for the Tribunal and/or theHigh Court to hold that abolition of posts was bad in law.

12.1 Even otherwise, on merits also, the decision of the HighCourt in holding the abolition of posts bad in law, cannot be sustained.The learned Singh Judge of the High Court has held the abolition ofposts bad in law by observing that as the institution/Management receivedthe grant and the fees from the students, it cannot be said that the financialcondition of the Management was weak which warranted abolition ofposts. However, it is required to be noted that before the learned SingleJudge the entire financial position/balance-sheet was not placed beforethe High Court. Merely some grant might have been received by theinstitution/Management and/or the Management might have receivedthe fees from the students, unless and until the balance-sheet and theentire expenditure are considered, it was not open for the High Court tocome to the conclusion that the financial condition was not such poor A

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Awhich warranted the abolition of posts. Therefore, even the reasoninggiven by the High Court to hold that the abolition of posts bad in law,cannot be sustained.

13. Even the observation made by the learned Single Judge thatas the Management deposited six months salary, as required under RuleB39 of the 1993 Rules, it was incumbent upon the Management to followthe procedure as provided under Rule 39 of the 1993 Rules before theremoval of the concerned employees. However, it is required to benoted that Rule 39 shall be applicable only in a case where an employee,other than the employee referred to in sub-section (1) is removed ordismissed from service on the ground that of insubordination, inefficiency,Cneglect of duty, mis-conduct or any other ground, which makes theemployee unsuitable for further retention in service. On a fair readingof Rule 39, it appears that only in the aforesaid cases, the procedureprovided under Rule 39 is required to be followed. Rule 39 furtherprovides that when the Managing Committee is of the unanimous opinionDthat the services of an employee cannot be continued without prejudiceto the interest of the institution, the services of such employee can beterminated after giving him six months notice or salary in lieu thereofand the consent of the Director, Education is obtained in writing.Therefore, in case of removal of an employee due to abolition of thepost, Rule 39 of the 1993 Rules shall not be applicable at all. MerelyEbecause, for whatever reasons and may be, to be on a safer side, themanagement deposited six months salary, by that itself, Rule 39 of the1993 Rules shall not be made applicable, if otherwise, the same is notapplicable.

14. In view of the above and for the reasons stated above, theFpresent appeals are allowed. The impugned common judgment and orderpassed by the Division Bench of the High Court dated 15.12.2016, learnedSingle Judge of the High Court as well as the learned Tribunal directingthe appellant to reinstate the private respondents herein are quashedand set aside. No costs.

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Ankit Gyan

Appeals allowed.

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