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Judgment
Shiv Kumar Sharma, J.—The petitioner (hereinafter described as ''Institution'') seeks to quash the judgment dated January 8, 1996 (Annexure 19) of the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short Tribunal'') whereby the application submitted by respondent Nos. 2 and 3 u/s 21 of the Rajasthan Non-Government Educational Institutions Act, 1989 (for short ''1989 Act'') was allowed and institution was restrained from terminating the services of respondent Nos. 2 and 3 without following the procedure mandated u/s 18 of the 1989 Act and Rule 39 of the Rajasthan Non-Government Educational Institutions Rules, 1993 (for short ''1993 Rules'').
The Institution appointed respondent Nos. 2 and 3 as part-time teacher temporarily in the year 1993. In order to fill those two posts on regular basis interviews for selection were held on 15th February, 1995. The respondent Nos. 2 and 3 appeared in the interview alongwith other candidates but they were not found meritorious and two other meritorious candidates namely Narendra Kaur and Sashi Bhalla were selected against those two posts on which respondent Nos. 2 and 3 were temporarily appointed. Respondent Nos. 2 and 3 approached the Tribunal on the ground that compliance of Section 18 and Rule 39 was mandatory and services of respondent Nos. 2 and 3 could not have been terminated without making compliance of Section 18 and Rule 39.
I have heard the submissions advanced before me and carefully scanned the material on record.
Having analysed the material on record, I find that this writ petition involves the elements of Articles 226 and 227 of the Constitution. Learned Tribunal not only ignored the conduct of respondent Nos. 2 and 3 but did not proceed within its parameters.
A temporary employee may compete alongwith others for regular selection but if he is not get selected he has to give way to the regularly selected candidate. This legal position was indicated in State of Haryana and others Vs. Piara Singh and others etc. etc., and following observations were made :
"The normal rule is regular recruitment through the prescribed agency but agencies of administration may sometimes call for an ad hoc or temporary appointment to be made. In such situation, effort should always be to replace such an ad hoc/temporary employee by a regularly selected employee as early as possible. Such a temporary employee may also compete alongwith others for such regular selection/appointment. If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc /temporary employee."
The respondent Nos. 2 and 3 participated in the selection process knowing fully well that if they did not get selected they had to give way to the regularly selected candidates. Undeniably Narendra Kaur and Sashi Bhalla secured more marks than respondent Nos. 2 and 3 and, therefore, Narendra Kaur and Shashi Bhalla were rightly appointed on the posts held by respondent Nos. 2 and 3. Since respondent Nos. 2 and 3 were estopped by their conduct, protection granted to the employees of Educational Institutions u/s 18 and Rule 39 was not available to them.
Learned Counsel for the respondent Nos. 2 and 3, vehemently contended that if statute prescribes a procedure for doing a thing, that thing has to be done according to that procedure. (Vide Haresh Dayaram Thakur v. State of Maharashtra 2000 WLC 486). Since the respondent Nos. 2 and 3 themselves abandoned the protection granted to them by Section 18 and Rule 39, by taking part in regular selection ratio indicated in Haresh Dayaram Thakur''s case is not applicable.
The next contention of learned Counsel for the respondent Nos. 2 and 3 is that two more posts were vacant, therefore till those posts were filled the service of respondent Nos. 2 and 3 could not be terminated. I find no merit in this contention, since from the letter of District Education Officer, Bikaner dated 28th March, 1995 (Annexure 13) it appears that two posts were reserved by the SC/ST candidates.
Learned Counsel for respondent Nos. 2 and 3 lastly contended that even before declaration of the result the respondent Nos. 2 and 3 had approached the Tribunal, therefore, the mandate of Section 18 of 1989 Act and Rule 39 of 1993 Rules ought to have been followed. I am not impressed with the submission. The respondent Nos. 2 and 3 after appearing in the interview for regular selection were estopped by their conduct from seeking protection u/s 18 of 1989 Act and Rule 39 of 1993 Rules.
As a result of the above discussion, I allow the writ petition and set aside the impugned order dated 8th January, 1996 (Annexure 19).