MANAGING COMMITTEE SETH MOTILAL PG COLLEGE Vs. STATE

JUDGEMENT

(1.) This writ petition was filed by Managing Committee of Seth Moti Lal College, Jhunjhunu against the order of the Joint Director, College Education, Jaipur dated 24.5.2008 whereby the order of compulsory retirement of the respondent no.3 Dr. Y.K. Sharma passed u/s. 16 of the Rajasthan Non-Government Educational Institutions Act, 1989 has been set aside.

(2.) Shri N.K. Maloo, learned Senior Counsel for the petitioner has argued that the State Government has no competence to set aside an order passed by the Managing Committee compulsorily retiring respondent no.3 on his completing 25 years of service. The aforesaid order was passed by invoking provisions of Section 16 of the Rajasthan Non-Government Education Institutions Act, 1989 (for short-'the Act'). While Section 18 requires prior consent/approval of the State Government for passing an order of removal, dismissal or reduction in rank, section 16 does not envisage any such pre-condition. It is argued that the remedy of the respondent against the order of compulsory retirement was before the Rajasthan Non-Government Educational Institutions Tribunal under section 21 of the Act. Respondent has already filed an appeal before the Tribunal on the same subject. The State Government therefore acted illegally in issuing the impugned order in the face of specific provision u/s.21. Learned senior counsel cited the division bench judgement of this Court in Shri Agarwal Shiksha Samiti & Anr. vs. Shri Nand Kishor Sharma & Ors.,2009 3 WLC(Raj) 600 and argued that division bench in the said case has reversed the single bench judgement in Surendra Kumar Verma & Ors. vs. Rajasthan Non-Government Educational Institutions Tribunal & Ors.,2000 3 WLC(Raj) 84 and held that even if no specific procedure or rules are prescribed on the question of compulsory retirement envisaged in Section 16, compulsory retirement is subjective assessment and discretion of the competent authority in the interest of the institution and public at large. Learned senior counsel argued that this judgement was even upheld by the Supreme Court.

(3.) Shri D.P. Sharma, learned counsel for the respondent argued that the State Government is equally competent to entertain the dispute against the order of compulsory retirement because with regard to matters included in section 16, the powers are basically vested in the State Government and it is State Government alone which can exercise such powers. In this respect, reference was made to the caption of Section 16 of the Act which provides "power of the State Government to regulate the terms and conditions of employment". It is argued that when the Managing Committee could not pass the order of compulsory retirement of the respondent without the approval of the State Government, such permission should be deemed to have been refused and in that event, the remedy of the petitioner Managing Committee was to file an appeal against the order of refusal sub-section (1) of Section 19.