By this writ petition, a challenge is made to the order dated 08.11.2004 passed by the Rajasthan Non-government Educational Institutions Tribunal, Jaipur (for short Tribunal) whereby the order of termination of respondent is held to be illegal, thus set aside.

Learned counsel for the petitioner-Institution submits that the Tribunal failed to consider an objection, which goes in root of the case. The respondent-employee filed an appeal without impleading Shree Digamber Jain Senior Secondary School, Sikar as a party respondent. The objection aforesaid has not been dealt with by the Tribunal, though specifically raised and argued before it. In absence of necessary party, the impugned order vitiates.

A reference of judgment in the case of Ranjeet Mal Vs. General Manager, Northern Railway Baroda House, New Delhi & Anr. reported in AIR 1977 SC 1701 [LQ/SC/1976/489] has been given wherein without impleadment of Union of India as a party respondent, the writ petition was filed against the Railway Board was held to be improper.

The second argument of learned counsel for the petitioner Institution is that under clause (iii) of second proviso to Section 18 of the Rajasthan Non-government Educational Institutions Act, 1989 (for short Act of 1989), prior consent of the Director, Education is not required as otherwise mandated in first proviso to Section 18 of the Act of 1989. The Tribunal failed to make distinction between two provisions and construed clause (iii) of second proviso of Act of 1989 to provide prior consent of the Director whereas the word prior is not mentioned in the provision. Further, instead of taking note of the word consent used in the aforesaid provision, the word approval has been considered and thereby, it was held that order was passed without approval of the Director, Education. Thus, on that ground also, the impugned order deserves to be set aside.

Learned counsel for the respondents, on the other hand supported the order of the Tribunal. It is stated that if Shree Digamber Jain Senior Secondary School, Sikar was not properly impleaded as a party respondent, then there was no occasion for the school to file reply and to contest the matter on merit, however, the matter was contested on merit, thus hyper technical objection taken by the petitioner/s may not be accepted.

Coming to the second argument, learned counsel for the respondents submit that the word approval has been mentioned instead of the word consent but by itself, the impugned order may not be set aside, rather this Court may give proper interpretation in reference to the argument/s raised by learned counsel for the petitioner Institution.

I have considered the submissions made by learned counsel for the parties and perused the record.

It is a case where petitioner Institution passed an order of termination under clause (iii) to second proviso to Section 18 of the Act of 1989. The respondent-employee challenged the order of termination by maintaining an appeal before the Tribunal.

The first issue for my consideration is as to whether appeal was incompetent for want of party.

I have gone through the array of respondents in the appeal and find that apart from the Committee as respondent No.1, the Principal, Shri Digamber Jain, Sr. Hr. Secondary School, Sikar was impleaded as a party respondent, though it is Shri Digamber Jain Senior Secondary School, Sikar, however, the notice was served on Shri Digamber Jain Senior Secondary School, Sikar itself and reply was also filed. The matter was even contested on merit, thus learned counsel for the petitioner could not clarify that if there was failure of impleadment of the party, who had passed the order of termination then why and how the matter was contested on merit. In the background aforesaid, first objection raised by the learned counsel for the petitioner Institution becomes technical in nature.

Looking to the reasons given above and now challenge to the order is made on merit by none-else but the effected party, I am unable to accept first argument, though I am of the opinion that even Tribunal should have decided the issue aforesaid but failure to do so will not render order as illegal, moreso when, it has been considered and decided by this Court.

So far as the second argument raised by the learned counsel for the petitioner Institution is concerned, the order of termination was passed in reference of clause (iii) of second proviso to Section 18 of the Act of 1989 and much emphasis has been made to give correct interpretation of the language referred therein. In view of the above, it would be gainful to quote Section 18 of the Act of 1989 for ready reference:

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

Provided that no final order in this regard shall be passed unless prior approval of the Director of Education or an officer authorized by him in this behalf has been obtained:

Provided further that this section shall not apply, -

(1) to a person who is dismissed or removed on the ground of conduct which led to him conviction on a criminal charge, or

(ii) where it is not practicable or expedient to give that employee an opportunity of showing cause, the consent of Director of Education has been obtained in writing before the action is taken or

(iii) Where the managing committee is of unanimous opinion that the services of ail employee can not be continued without prejudice to the interest of the institution, the services of such employee are terminated after giving him six months notice or salary in lieu thereof and the consent of the Director of Education is obtained in writing.

The perusal of proviso (i) to Section 18 of the Act of 1989, no doubt shows a mandate to seek prior approval of the Director. So far as Clause (iii) to second proviso is concerned, neither the word prior nor the word approval has been used, thereby the learned Tribunal wrongly used and decided the matter in reference to the word approval instead of considering the word consent as has been mentioned in Clause (iii) of second proviso.

According to learned counsel for the petitioner Institution even prior consent of the Director is not required to invoke Clause (iii) to second proviso.

I have considered the aforesaid submission and find that though the word prior has not been used in clause (iii) of second proviso but what has been mandated is three conditions:

(i)A unanimous opinion of the Managing Committee indicating that services of the employee cannot be continued without prejudice to the interest of the Institution.

(ii)The services of the such employee are terminated after giving him six months notice or salary in lieu thereof.

(iii)After obtaining consent of Director in writing.

The three conditions are required to be satisfied and in this regard, the word after is of significance. It provides that termination can be effected after giving six months notice or salary in lieu thereof and consent of the Director, Education obtained in writing. The word after pre-supposes satisfaction of two conditions before passing of the order which includes consent of the Director. It is not that consent of the Director can be obtained at any point of time otherwise Clause (iii) of second proviso will become useless or redundant.

In the case in hand, the consent of the Director does not exist even though the order of termination was passed sometime in the year 2003 and a period of nine years has already passed in between. If the argument/s of learned counsel for the petitioner is accepted then virtually, the consent required from the Director looses its significance. Accordingly, the argument/s aforesaid cannot be allowed or accepted, more so when, it makes a proviso to be redundant. This Court cannot give interpretation of a nature, which makes a proviso to be redundant.

In view of the above, I am of the opinion that though the Tribunal should have been careful while deciding the matter by using terminology provided in the relevant provision and thereby, instead of referring the word approval, the consideration should have been in reference to the word consent.

By virtue of the aforesaid itself, the order of the Tribunal cannot be nullified, more so when, I have considered the arguments of the learned counsel for the petitioner Institution on merit and find that even if Clause (iii) of second provision is to be invoked, it can be after consent of the Director. In the instant case, termination order was not after the consent of the Director, Education, which was required to be obtained in writing.

In view of the discussion made above, I do not find any illegality in the impugned order merely for the reason that the word approval has been considered by the Tribunal instead of the word consent. This Court has considered the issue aforesaid and find that mere use of different term or word results no effect on the relief granted by the Tribunal. The entire issue has been considered on merit to avoid further multiplicity of litigation.

The writ petition is accordingly found devoid of merit, hence, it is dismissed so as the stay application.