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Judgment
Govind Mathur, J.—By the judgment dated 18.5.2000 the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (hereinafter referred to as the Tribunal1) directed the petitioner-Institution i.e. the employer to employ respondent Shri Dharampal Singhal as Class IV employee on compassionate ground in accordance with the provisions of the Rajasthan (Recruitment of Dependents of the Government Servant Dying While in Service) Rules, 1975 (hereinafter referred to as ''the Rules of 1975''). The factual matrix necessary to be noticed is that Shri Nagarmal (father of respondent Shri Dharampal) died on 5.4.1995 while working as Lab Technician (Physics) with the petitioner-Institute. In the year 1998 Shri Dharampal preferred an application as per Section 21 of the Rajasthan Non-Government Educational Institutions Act, 1989 (hereinafter referred to as ''the Act of 1989'') before the Tribunal claiming appointment on compassionate grounds as per the Rules of 1975.
A reply to the application was submitted by the respondents containing therein that the Rules of 1975 were having no application qua them and also that in view of Rule 15 of the Rajasthan Compassionate Appointment of Dependents of Deceased Government Employee Rules, 1996 the Rules of 1975 stands repealed and, therefore, no consideration for appointment under the repealed Rules can be made. By negativating the stand taken by the petitioner, directions as noticed above were given by the Tribunal.
The submission of learned counsel for the petitioner before this Court while invoking extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India is:
(1) the application preferred by Shri Dharampal u/s 21 of the Act of 1989 was not maintainable in view of the fact that he was not an employee of the petitioner-Institute.
(2) the directions given by the Tribunal to provide appointment as per the provisions of Rules of 1975 is erroneous in view of the fact that the Rules aforesaid stood repealed and, therefore, those were not existing, and
(3) even if it is assumed that the Rules of 1996 could have been applied, no appointment could have been accorded to the respondent as he submitted an application at a belated stage.
Heard learned counsel for the petitioner.
The first submission of learned counsel for the petitioner is about non-maintainability of the application u/s 21 on behalf of respondent Shri Dharampal. Section 21 of the Act of 1989 provides that "Where there is any dispute between the management of a recognized institution and any of its employee with respect to the conditions of service, the management or the employee may make an application in the prescribed manner to the Tribunal and the decision of the Tribunal thereon shall be final" (employees emphasized) The term "employee" as defined u/s 2(i) of the Act of 1989 includes a teacher and every other employee working in a recognized institution.
As per Section 21 of the Act of 1989, an application before the Tribunal can be filed either by employee or by the management in the event of existence of a dispute between them. As per the term "employee" as defined u/s 2(i), all the persons working with a non-government educational institution including teachers are employees, meaning thereby to become an employee, the necessary ingredients is working with the educational institution. The respondent Shri Dharampal by submitting an application u/s 21 claimed appointment on compassionate grounds and admittedly at the time of filing of the application he was not working with the educational institution, as such, he was not an employee of the petitioner-Institution as defined u/s 2(i) of the Act of 1989, therefore, the application u/s 21 on his behalf was not maintainable. The Tribunal, thus, should have not entertained the application and should have rejected at the threshold.
Besides the above, the other contention of learned counsel for the petitioner that no appointment could have been accorded under the repealed Rules is also having force in view of Division Bench judgment of this Court given on 19.2.2001 in the Board of Rajasthan and Another Vs. Rajendra, . In the case aforesaid while dealing with the applicability of repealed Rules and also the question of delay in submitting an application seeking compassionate appointment, the Division Bench held as under:--
Law is well settled that whenever an Act is repealed, it must be considered, except as to transactions passed and closed as if it had never existed. The effect of repeal vide Rule 15 in the present case was to obliterate the Rules of 1975 completely from the book and as if it has never been framed and it never existed to the extent of actions which were initiated, taken and concluded while the Rules of 1975 were existing. Moreover, existence of corresponding provisions similar to the one contained in repealed provisions is condition precedent to claim that a different intention does not appear in the new rules and, therefore, the rights of the dependants would not stand effected under the new rules. If certain provisions of the new rules are inconsistent and incompatible with the old rules, such rights automatically get obliterated and as a result and effect of the provisions relating to repeal, earlier provisions no longer survive. As to the meaning of right accrued and acquired and as to what effect would be there on the rights where a contrary intention appears in the new set of Rules. Strong reliance was placed on the recent judgment of the Supreme Court in the case reported in Gajraj Singh etc. Vs. The State Transport Appellate Tribunal and others etc., for the above proposition. In para 22, the Supreme Court has observed as follows:
Whenever an Act is repealed it must be considered, except as to transactions past and closed, as if it had never existed. The effect thereof is to obliterate the Act completely from the record of Parliament as if it had never been passed; it never existed except for the purpose of those actions which were commenced, prosecuted and concluded while it was an existing law.
We have already noticed the direction given by the learned Single Judge in para 21 of his judgment. In first apart of para 21 the learned Single Judge has directed that where the death of the deceased Government servant had taken place before January 25, 1997 their cases should be considered afresh under the Rules of 1975. In the second part of the directions in para 21 the learned Judge has directed for even application after prescribed period of 45 days and reasonable explanation is offered, the Government or authority concerned should take recourse to the provisions of Section 5 of the Limitation Act in condoning the delay. These directions in our view run contrary to what has been directed by the learned Single Judge in the first part of para 21 where it has been ordered that such Rules should be dealt with under the Rules of 1975. Moreover the provisions of Section 5 of the Limitation Act cannot be made applicable to the administrative and executive decisions. u/s 5 of the Limitation Act the parties have to satisfy the Court that they had sufficient cause for not preferring the appeal or application within the stipulated period. In Smt. Sushila Devi Vs. Ramanandan Prasad and Others, , the Supreme Court has held that Section 5 of the Limitation Act, 1963 does not apply if the authority is not a court and the Collector acting u/s 15 of the Kosi Area (Restoration of Lands got Raiyats) Act, 1951 not court, though vested with certain specified powers under the Code of Civil Procedure.
In our opinion, Section 5 of the Limitation Act cannot at all be invoked in connection with application made in the instant case. u/s 5, Limitation Act an appeal or application may be admitted after the prescribed period if the appellant/applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. In Sakuru Vs. Tanaji, , the Supreme Court has observed as follows :
Where appeal is before a body or an authority other than a ''court'', special statute under which appeal is filed must authorise such body or authority to apply Section 5 while dealing with application for condonation of delay in filing the appeal.
In Nityananda, M. Joshi and Others Vs. Life Insurance Corporation of India and Others, the Supreme Court has observed as under:
Article 137 only contemplates application to courts. In the Third Division of the Schedule to the Limitation Act, 1963 all the other applications mentioned in the various articles are applications filed in a court. Further Section 4 of the Limitation Act, 1963, provides for the contingency when the prescribed period for any application expires on a holiday and the only contingency contemplated is when the court is closed. Again tinder Section 5 it is only a court which is enabled to admit an application after the prescribed period has expired if the court is satisfied that the applicant had sufficient cause for not preferring the applications. The scheme of the Indian Limitation Act, 1963 is that it only deals with applications to courts and that the Labour Court is not a court within the Indian Limitation Act, 1963.
It is thus seen that the directions issued by the learned Single Judge are incapable of compliance in view of the settled legal positions.
In view of the Division Bench judgment of this Court in the case referred above, no direction could have been given by the Tribunal for giving appointment to the respondent Shri Dharampal in accordance with the Rules of 1975. For the reasons given above, the judgment given by the Tribunal accepting the application preferred by respondent Shri Dharampal suffers from error apparent on the face of record and, therefore, the same is hereby set aside. The writ petition is allowed accordingly.