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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
Sameer Jain, J.
Managing Committee & Ors. – Appellants
Versus
Rajasthan Non Government Educational Institution Tribunal, Jaipur & Ors. – Respondents
S.B. Civil Writ Petition No. 8704 of 2009
Decided On : 01-04-2022
employee - Employment Contract - Rajasthan Non-Government Educational Institutions act, 1989, Section 18, Section 20, Rule 33 of 1993 - The court discussed the provisions of the act of 1989, Section 18, Section 20, and Rule 33 of 1993, and their applicability to the employment contract in question. The court highlighted the nature of the employment contract, the rights conferred by the act, and the validity of the contract under the relevant provisions.
Fact of the Case:
The petitioner, an unaided educational institution, filed a writ petition against an order allowing the appeal of an employee who was appointed on a contractual basis. The central issue was whether the employee's appointment under a contract on a part-time basis could be considered as an employee and whether the provisions of Section 18 of the act of 1989 would be applicable to him.
Finding of the Court:
The court found that the appointment was on a contractual basis for a fixed amount and period, and no employer-employee relationship existed. The court held that the provisions of Sections 18 and 20 of the act of 1989 did not apply to the contract in question.
Issues: The main issue was whether the employee's appointment under a contract on a part-time basis could be considered as an employee and whether the provisions of Section 18 of the act of 1989 would be applicable to him.
Ratio Decidendi: The court held that the contract was for a part-time job on a contractual basis for a fixed period, duly accepted by the respondent without any pressure or influence. The court emphasized that the provisions of Section 20 of the act of 1989 recognize the formation of contracts under the act, provided they do not contradict the provisions of the act.
Final Decision: The petition was allowed, and the order passed by the Tribunal was set aside.
JUDGMENT
Sameer Jain, J. - The present writ petition has been filed invoking article 226 of the Constitution of India against order dated 25.09.2008 passed by Rajasthan Non-Government Educational Institution Tribunal, Jaipur (hereinafter referred to as 'Tribunal') whereby the appeal no. 69/2005 filed by respondent No. 2 against the petitioners was allowed.
2. It is submitted by the petitioner that it is an unaided institution with only temporary affiliation and has issued an advertisement (annexure-2) dated 20.06.2003 whereby it was advertised at serial no. 9 that a Clerk (Lipic) is required on contractual basis.
3. On 25.06.2003, a letter of consent was issued in favour of respondent No.2 for a part-time Clerk for a specified period from 03.07.2003 to 15.05.2004 under a contract, which was duly accepted on the said terms and conditions by respondent No.2 and thereafter consent and joining was given on 03.07.2003. On expiry of the tenure, the application for extension was filed by the respondent and consent/agreement was issued by petitioner vide letter dated 10.06.2004. On 14.05.2005 order of relieving on expiry of terms was issued against which the respondent preferred an appeal before the Tribunal which directed reinstatement with full salary after considering the provisions of law and the facts of the case. aggrieved by order of Tribunal in appeal, present writ petition has been filed.
4. Per contra, counsel for the respondents have submitted that the Rajasthan Non-Government Educational Institutions act, 1989 (hereinafter referred to as 'act of 1989'), the Rajasthan Non-Government Educational Institutions (Recognition, Grant-in-aid and service Conditions etc.) Rules, 1993 (hereinafter referred to as 'Rules of 1993') and the settled position of law recognized substantive appointment, if the selection of the candidate is made upon issuance of advertisement and after consideration of all candidates. He submits that the respondent in question is an employee in terms of Section 2(i) of the act of 1993, and by virtue of Section 20 any contract between a recognized institute and an employee, if takes away any right conferred upon such persons by or under the act of 1993, is null and void. He submits that once a substantive appointment is made then by virtue of Section 18, without giving six months notice or salary and the consent of Director of Education and resolution by managing committee, the employee cannot be removed, dismissed or reduced in rank. He further submits that as per settled position of law in R.S. Rawat Vs. State of Rajasthan reported in 1993 (1) WLC 79 (Para 15) reproduced below:-
'15. It cannot be ignored that in our country the doctrine of Lassaize Faire has not been accepted and the employer does not have an absolute freedom in the matter of laying down the terms and conditions of employment. Even if the employer settles terms and conditions of employment which are unfair, arbitrary or opposed to public policy, the same are not binding on the employee. Such terms and conditions cannot be enforced against the employee. The employee can seek a declaration of invalidity against such terms and conditions on the ground that the conditions are arbitrary and unreasonable. In Central Inland Water Transport Corporation v. Brojo Nath Ganguli, (1986(3) S.C.C. 156) their Lordships of the Supreme Court gave a new dimension to the powers of the Court to strike down the terms and conditions of a contract of employment on the ground that the same is unconscionable or unfair. after making a lucid analysis of articles 14, 39(a) and 41 of the Constitution of India and Section 23 of the Contract act, 1872, the Supreme Court held:
"an unconscionable bargain or contract is one which is irreconcilable with what is right or reasonable or the terms of which are so unfair and unreasonable that they shock the conscience of the Court.
The doctrine of distributive justice is another jurisprudential concept which has affected the law of contrac
The main legal point established in the judgment is that the provisions of the act of 1989, Section 18, and Section 20 do not apply to a part-time job appointment on a contractual basis for a fixed p....
The court affirmed that all employees, including those on temporary contracts, are entitled to protections under Section 18 of the Act, requiring notice and approval for termination.
The court recognized the right of the State to appoint persons on temporary basis to meet its exigencies, and held that the failure of the ATTC to maintain the student to lecturer ratio and the petit....
Point of Law : Re-engagement of the petitioners after the first contractual period was over will not amount to unfair practice.
Temporary employees cannot be replaced by other temporary appointees; regularization must follow due process ensuring fairness and equality in employment.
Employers must clearly specify the nature of appointments in job advertisements; failure to do so leads to regularization of initially contractual positions when recruitment processes are followed.
Point of law: Reinstatement with full back wages is not automatic in every case, where termination/dismissal is found to be not in accordance with procedure prescribed under law and in circumstances ....
Compliance with the Rules for appointment in an unaided recognized school is essential for statutory protection of employment.
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