Bombay High Court
Jagdamba Education Society vs Rajendra S/O Baburao Golhar on 28 January, 2009
Author: J. H. Bhatia
Bench: J. H. Bhatia
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 811/2001
Jagdamba Education Society,
Koradi, tq. Kamptee, dist. Nagpur
thr. Its Secretary Premlal Patel,
r/o near Ajit Bakery, Dharampeth,
Nagpur.
.....PETITIONER
...V E R S U S...
1. Rajendra s/o Baburao Golhar,
aged about 40 years, r/o Shaniwari,
Imambada road, Nagpur.
2. The Education Officer (Secondary)
Zilla Parishad, Dist. Nagpur.
3. The Presiding Officer, School Tribunal,
Civil Lines, Administrative Building,
Nagpur.
4. The Head Master, Aswani Madhyamik
Vidyalaya, Bina, tq. Kamptee, dist. Nagpur.
.....RESPONDENTS
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Mr. S. P. Kshirsagar, Advocate for petitioner.
Mr. A. S. Chandurkar, Mr. B. H. Shamharkar, Advocates for
respondent no.1.
Ms. A. Taiwade, A.G.P. for respondent no. 2.
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✁
CORAM:- J. H. BHATIA, J.
DATE:- 28th JANUARY, 2009
ORAL JUDGMENT
1. The petitioner is an education society running Aswani Madhyamik Vidyalaya, Bina, tq. Kamptee, dist. Nagpur. The said School is non grant-in-aid school and admittedly provisions of Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter referred to as "the Act") are applicable to the petitioner-Society as well as its employees.
Respondent no. 1 secured degree of B.Com. in the year 1983, B.P.Ed.
in the year 1985, B.A. in the year 1986 and B.Ed. in the year 1989.
On 28.06.1986, respondent no. 1 was appointed as Assistant Teacher in the School of the petitioner for academic year 1986-87. Every year, fresh appointment orders were issued and thus he continued to work as Assistant Teacher till the academic year 1991-92. Respondent no. 1 filed appeal No. STN 224/92 before the School Tribunal, Nagpur contending that at the time of his appointment as Assistant Teacher, he was holding requisite qualification and he had worked on that post for more than six years continuously without any break. His record was ::: Downloaded on - 09/06/2013 14:16:59 ::: ✂ clean and unblemished. On 09.07.1992 when respondent no.1 returned on the duty, the petitioner and respondent no. 4-Head Master of the School restrained him from joining duty and orally terminated his services. That termination was challenged by him in the said appeal. According to him, as he had completed his service for more than two years continuously, he should be deemed to have been confirmed and his services could not be terminated without following due procedure of law.
2. The appeal was contested on behalf of the petitioner-
Management. According to the Management, respondent no. 1 was appointed as Assistant Teacher purely on temporary basis for the academic year 1986-87 by order dated 28.06.1986. That appointment came to an end with the academic session and, thereafter, appointment orders of the similar nature were issued from time to time and every time services of respondent no.1 automatically stood terminated by efflux of time as per appointment orders. It was contended that as appointment was purely temporary and not on ::: Downloaded on - 09/06/2013 14:16:59 ::: ✄ probation of two years, respondent no. 1 could not claim benefit of permanency or any other benefits under Section 5 of the Act. They also denied that on 08.07.1992, respondent no. 1 had returned on duty and was restrained from joining the same. The Education Officer (Secondary), Zilla Parishad-respondent no. 2 did not appear to contest the appeal before the School Tribunal.
3. After hearing oral arguments and after going through the documentary evidence led by the parties, the School Tribunal came to the conclusion that respondent no. 4-School, run by the petitioner-Management, is recognized as per the Act. Appointment of respondent no.2 as Assistant Teacher was not approved by the Education Officer. He was holding necessary qualification for being appointed as Assistant Teacher. As there was vacant post of Assistant Teacher, the appointment of respondent no. 1 on the said post should be deemed to be on probation and as he had put in continuous service of six years, his services could not be terminated without following due procedure of law. With this finding, the appeal was allowed. Oral ::: Downloaded on - 09/06/2013 14:16:59 ::: ☎ order dated 09.07.1992, terminating services of respondent no. 1, came to be set aside. The Management was directed to reinstate respondent no. 1 to the post of Assistant Teacher and to pay arrears of emoluments from 09.07.1992 till the date of reinstatement within 60 days from the order. Being aggrieved by the said order passed by the School Tribunal, the Management has challenged the said order in the present petition.
4. Heard learned counsel for the parties. Perused the impugned order.
5. Admitted facts are that the petitioner-Management is running School-respondent no. 4. Prior to 1986, it was not recognized but since 1986 it is a recognized School. Respondent no. 1 was holding necessary qualification for being appointed as Assistant Teacher on permanent basis. On 28.06.1986, first appointment order was issued in favour of respondent no. 1 and he was appointed as Assistant Teacher with effect from 01.07.1986 till the end of academic ::: Downloaded on - 09/06/2013 14:16:59 ::: ✆ session 1986-87. On 23.06.1987 similar order was again issued from the academic session 1987-88 commencing on 25.06.1987. Last such order was issued on 22.06.1991 for the academic session 1991-92 beginning with 24.06.1991 till the end of session. Each of these appointment orders indicated that the appointment is purely on temporary basis for one year. There is no dispute that when the temporary appointments are made, that appointment comes to an end with the end of academic session but as per the rules, the Management has to pay salary or wages for the vacation intervening the end of the session and opening of the School for the next session. In view of this, there appears no dispute that from 01.07.1986 till the end of academic session 1991-1992 i.e. for complete six years respondent no. 1 was in service of the School. It is also an admitted fact that the Management never issued any orders of appointment in favour of respondent no.1 appointing him on probation for a period of two years or so and the Management also never submitted any proposal for approval to the appointment of respondent no. 1 and, therefore, naturally approval to the appointment of the petitioner was never granted by the Education ::: Downloaded on - 09/06/2013 14:16:59 ::: ✝ Officer. According to respondent no.1, on 09.07.1992, he went to the School but he was not allowed to resume the duty. At the same time, the Head Master of the School asked him to do some work of the School, which he did. On behalf of the Management, this is denied and it is contended that even after end of session, respondent no. 1 used to come to the School but not as an employer and, therefore, question of termination of his services from July-1992 would not arise.
It is contended that for the academic year 1992-1993, no such appointment letter was issued to respondent no. 1. After obtaining necessary sanction from the Education Officer, an advertisement was issued in August-1992 for recruitment and appointment of Assistant Teacher, who could teach Social Science and Hindi subjects. As regular appointment was proposed to be made the Management did not find it necessary to give appointment to respondent no. 1 on temporary basis for the academic year 1992-93. It is denied that on 09.07.1992 by oral order services of respondent no. 1 were terminated.
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6. Learned counsel for the petitioner vehemently contended that the appointment has to be made as per procedure laid down in Section 5 of the Act and if the appointment is not made after following that procedure and if the appointment is not on probation of two years, merely because respondent no. 1 had served the School from 1986 to 1992, he does not get the benefit of permanency nor he is entitled to any protection under the Act. According to him, his appointment was specifically for a particular academic session and his appointment order itself would indicate that his services would stand terminated with the end of such academic session and thus between every two academic sessions there were breaks in service and respondent no.1 could not be deemed to have completed his probation.
7. On the other hand, learned counsel for respondent no. 1 vehemently contended that merely because approval to the appointment of respondent no. 1 as Assistant Teacher was not taken, it makes no difference because approval is only for the purpose of ::: Downloaded on - 09/06/2013 14:16:59 ::: ✟ liability of the Government to pay grants to the grant-in-aid schools. It is contended that the Management is bound to make appointment on regular basis, if there is a clear vacancy.
8. To appreciate the rival contentions of learned counsel for the parties, it will be necessary to refer to the provisions of the Act and the Rules made thereunder as interpreted by this Court as well as Supreme Court. Section 5 of the Act reads as follows:-
"5:- (1) The Management shall as soon as possible, fill in the manner prescribed every permanent vacancy in a private school by the appointment of a person duly qualified to fill such vacancy;
Provided that unless such vacancy is to be filled in by promotion the Management shall before proceeding to fill such vacancy ascertain from the Educational Inspector, Greater Bombay, the Education Officer Zilla Parishad or as the case may be, the Director or the officer designated by the Director in respect of schools imparting technical, vocational, art or special education whether there is any suitable person available on the list of surplus persons maintained by him, for absoration in other ::: Downloaded on - 09/06/2013 14:17:00 ::: ✠☛✡ schools; and in the event of such person being available, the Management shall appoint that person in such vacancy.
(2) Every person appointed to fill a permanent vacancy except shikshan sevak shall be on probation for a period of two years. Subject to the provisions of sub-section (3) and (4), he shall on completion of this probation period of two years be deemed to have been confirmed.
Provided that, every person appointed as shikshan sevak shall be on probation for a period of three years.
2(A) Subject to the provisions of sub-section (3) and (4), Shikshan sevak shall, on completion of the probation period of three years, be deemed to have been appointed and confirmed as a teacher.
(3) If in the opinion of the Management the work or behavior of any probationer, during the period of his probation, is not satisfactory the Management may terminate his services at any time during the said period after giving him one month's notice or salary or honorarium of one month in lieu of notice.
::: Downloaded on - 09/06/2013 14:17:00 :::☞ (4) If the services of any probationer are terminated under sub-section (3) and he is reappointed by the Management in the same school or any other school belonging to it within a period of one year from the date on which his services were terminated, then the period of probation undergone by him previously shall be taken into consideration in calculating the required period of probation for the purposes of sub-section (2), (4A) Nothing in sub-section (2), (3) or (4) shall apply to a person appointed to fill a permanent vacancy by promotion or by absorption as provided under the proviso to sub-section (1).
(5) The Management may fill in every temporary vacancy by appointing a person duly qualified to fill such vacancy. The order of appointment shall be drawn up in the form prescribed in that behalf, and shall state the period of appointment of such person.
9. From the above provisions of Section 5, it is clear that the Management shall, as soon as possible, fill in every permanent vacancy in the private School by appointment of a person duly ::: Downloaded on - 09/06/2013 14:17:00 ::: ✌☛✍ qualified to fill in such vacancy in the manner prescribed. The person so appointed to fill in the permanent vacancy shall be on probation for a period of two years and subject to provisions of sub section (3) and (4), he shall, on completion of this probation period of two years, be deemed to have confirmed in the service. If he fail to complete probation satisfactorily or his behavior is not satisfactory, the Management may terminate his services after following procedure laid down in Sub Section (3). Sub Section (5) provides that the Management may fill in every temporary vacancy by appointing duly qualified person to fill in such vacancy.
10. There is no dispute that respondent no. 1 was holding sufficient educational qualification for being appointed as Assistant Teacher. It is true that in each of six appointment orders issued from 1986 to 1991 by the Management in favour of respondent no.1, it was stated that the appointment would be on temporary basis. The fact that respondent no. 1 was continued on that post of Assistant Teacher from 1986 to 1992 and in August-1992 the Management commenced ::: Downloaded on - 09/06/2013 14:17:00 ::: ✎✑✏ the procedure for regular appointment of permanent teacher by issuing advertisement for that purpose, indicates that the permanent vacancy was available with the Management since 1986.
11. The procedure for appointment of staff is laid down in Rule 9 and 10 of the Rules. Rule 10 reads as follows:-
"10:- Categories of Employees-(1) Employees shall be permanent or non-permanent. Non-permanent employees may be either temporary or on probation.
(2) A temporary employee is one who is appointed to a temporary vacancy for a fixed period."
From this rule it appears that the employees may be permanent or non permanent and non permanent employees may be appointed against permanent vacancy on probation or may be appointed as temporary employee. The temporary employee is one who is appointed on temporary vacancy for a fixed period.
Rule 9 of the Rules is also relevant in this regard.
Relevant portion of Rule 9 reads as follows:-
::: Downloaded on - 09/06/2013 14:17:00 :::✒✔✓ "9:- Appointment of staff.-(1) The teaching staff of the school shall be adequate having regard to the number of classes in the school and the curriculum including alternative courses provided and the optional subjects taught therein.
(2) Appointments of teaching staff (other than the Head and Assistant Head) and those of non teaching staff in a school shall be made by the School Committee:
Provided that, appointments in leave vacancies of a short duration not exceeding three months, may be made by the Head, if so authorised by the School committee.
(3) Unless otherwise provided in these rules for every appointment to be made in a school, for a teaching or non teaching post, the candidates eligible for appointment and desirous of applying for such post shall make an application in writing giving full details regarding name, address, date of birth, educational and professional qualifications, experience, etc. attaching true copies of the original certificates. It shall not be necessary for candidates other than those belonging to the various sections of backward communities for whom posts are reserved ::: Downloaded on - 09/06/2013 14:17:00 ::: ✕☞✖ under sub-rule (7) to state their castes in their applications.
(4) .....
(5) .....
(6) .....
(7) The management shall reserve 52 per cent of the total number of posts of the teaching and non-
teaching staff for the persons belonging to the Schedule Castes, Schedules Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward Category and Other Backward Classes as follows, namely:- .....
(8) For the purpose of filling up the vacancies reserved under sub-rule (7) the Management shall advertise the vacancies in at least one newspaper having wide circulation in the region and also notify the vacancies to the Employment Exchange of the District and to the District Social Welfare Officer and to the associations or organisations of persons belonging to Backward Classes by whatever names such associations or organisations are called and which are recognised by Government for the purposes of this sub-rule requisitioning the names of qualified person, if any, registered with them. If it is not possible to fill in the reserved post from amongst ::: Downloaded on - 09/06/2013 14:17:00 ::: ✗✙✘ candidates, if any, who have applied in response to the advertisement or whose names are recommended by the Employment Exchange or the District Social Welfare Officer or such association or organisations as aforesaid or if no such names are recommended by the Employment Exchange or the District Social Welfare Officer or such associations or organisations as aforesaid within a period of one month the Management may proceed to fill up the reserved post in accordance with the provisions of sub-rule (9).
(9)(a) In case it is not possible to fill in the teaching post for which a vacancy is reserved for a person belonging to a particular category of Backward Classes, the post may be filled in by selecting a candidate from the other remaining categories in the order specified in sub-rule (7) and if no person from any of the categories is available, the post may be filled in temporarily on an year to year basis by a candidate not belonging to the Backward Classes.
(b) In the case of non-teaching post, if a person from the particular category of Backward Classes is not available, the Management shall make efforts with regular intervals to fill up the post within the ::: Downloaded on - 09/06/2013 14:17:00 ::: ✚✜✛ period of five years and the post shall not be filled up during that period by appointing any other person who does not belong to the respective category of Backward Class."
12. From perusal of proviso to sub rule 2 of Rule 9, it becomes clear that the appointment on leave vacancy of a short duration not exceeding three months may be made by Head if so authorised by the School Committee and naturally this is temporary appointment. Similarly under Sub Rule 9 (a) if a candidate belonging to a particular category of backward class is not available to fill in that vacancy, the post may be filled in temporarily on year to year basis by candidate not belonging to backward class. Thus, these are two types of temporary vacancies. As per rule 10(2) a temporary employee is one who is appointed to a temporary vacancy for fixed period. In view of language of proviso to sub rule (2) and of sub rule (9) (a) of Rule 9 read with Rule 10 (2), it is clear that a person who is appointed against a temporary vacancy will be treated as temporary employee.
However a person who is appointed against permanent vacancy will ::: Downloaded on - 09/06/2013 14:17:00 ::: ✢✙✣ not be treated as a temporary employee though he may be non permanent employee. In the present case, there is nothing on record to show that respondent no. 1 was required to be appointed against some temporary vacancy either because of leave of a permanent teacher or because the post reserved for a particular caste, tribe or community was vacant. In view of this, I have no difficulty in coming to the conclusion that there was a permanent vacancy with the School when the first appointment order was issued by the Management in favour of respondent no. 1 and that permanent vacancy was available even in the year 1992 when the Management decided to make appointment on that post by issuing advertisement.
13. As stated earlier, as per Section (5) of the Act, the Management shall, as soon as possible, fill in the permanent vacancy by appointment of a person duly qualified to fill such vacancy in the manner prescribed. As per Rule 9 (2) of the Rules, the appointments of teaching staff have to be made by School Committee and for that purpose necessary procedure, as laid down in the said Rule, has to be ::: Downloaded on - 09/06/2013 14:17:00 ::: ✤✙✥ followed. Rule 9 (8) provides for such procedure to be followed for the purpose of filling in of the vacancies for reserved categories and it provides that the Management shall advertise the vacancy in at least one newspaper having wide circulation in the region and also notify the vacancy to the Employment Exchange of the district and to the District Social Welfare Officer and other organisations belonging to the backward class requisitioning the names of the qualified person. The purpose of making such provision is that the candidates belonging to the reserved categories for whom the vacancies are available should get sufficient information and knowledge about such vacancy and they may apply so that the post reserved for the backward categories should not remain unfilled. This is naturally a social legislation for the benefit of the backward communities so that they may get fullest possible opportunities to come up to the level of the forward and developed communities and castes. It is material to note that there is no specific provision in Rule 9 or any other Rule to issue an advertisement of the vacancies available for the open categories. The candidate, eligible for the appointment and desirous of applying for ::: Downloaded on - 09/06/2013 14:17:00 ::: ✦☞✧ such open posts, may make application in writing giving full details regarding permanent address, date of birth, educational qualification experience etc. attaching true copies of the original certificates as provided in Rule 9(3). Naturally, the Management may invite applications by issuing an advertisement in newspaper or by any other mode. If such applications are received, the School Committee may follow necessary procedure for the purpose of selection of such candidates for being appointed. The provision is made in the Schedule "A" about the School Committee which show that it shall consist of four representatives of the Management consisting of President of the governing body or his nominee and three members nominated by the governing body. It shall also consist of one member from amongst the permanent teachers from the same School in order of seniority and one member from amongst non teaching staff from the same school only in order of seniority and by category wise annual rotation.
14. Learned counsel for respondent no. 1 vehemently contended that when an employee is not appointed against the ::: Downloaded on - 09/06/2013 14:17:00 ::: ✍★✌ temporary vacancy but against a permanent vacancy, he cannot be termed to be a temporary employee in view of Rule 10 (2). He may be appointed against the permanent vacancy on probation and only after satisfactory completion of probation, he may be confirmed and may become permanent employee. He has also contended that in view of language of Section 5(2) of the Act it is clear that every person appointed to fill in a permanent vacancy shall be on probation for a period of two years. Learned counsel further contends that this is mandatory provision of law and when a person is appointed to fill in a permanent vacancy even if the order may not say so, the appointment shall be deemed to be on probation for a period of two years.
15. In support of his contention, learned counsel for respondent no.1 placed reliance on several authorities. First such authority is in Diwaru s/o Ramaji Madavi ..vs.. The Presiding Officer, School Tribunal & another; 1991 I CLR 272. In that matter, the petitioner was appointed as Peon in the respondent School from 17.10.1981 till 09.05.1984 with breaks after each session. The ::: Downloaded on - 09/06/2013 14:17:00 ::: ✩☞✩ Division Bench of this Court held that the petitioner had rendered services for a period of more than two years in the said post and, therefore, in view of the provisions of Section 5(2) of the Act, the petitioner's status is of confirmed Peon, as he was appointed against permanent vacancy and not against temporary vacancy. The Division Bench in paragraph no. 6 has observed as follows:-
"6. Moreover, it is the case of the petitioner that he was appointed in a clear vacancy and, therefore, it is submitted that in view of section 5(1) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, it was obligatory on the part of the Respondent No.2 to fulfil certain obligations by the Management of the private schools. Section 5(1) speaks that the Management shall, as soon as possible fill in, in the manner prescribed every permanent vacancy in a private school by the appointment of a person duly qualified to fill such vacancy. Section 5(2) enumerates that every person appointed to fill a permanent vacancy shall be on probation for a period of two years. Subject to the provisions of sub- sections (4) and (5), he shall, on completion of this ::: Downloaded on - 09/06/2013 14:17:00 ::: ✪✬✫ probation period of two years, be deemed to have been confirmed. It has neither been shown by the Respondent No. 2 that the petitioner was not appointed in a clear vacancy nor any attempt was made to fill the vacancy by employing the person other than the petitioner. The petitioner was in service for 3 academic sessions continuously although it is true that at the end of each session, his service stood terminated. But then it must also be seen, if he had worked for the academic session, he was entitled to salary for summer vacation under the rules even though his appointment was for one academic session each time. It may then be seen that his appointment in each session was in a clear vacancy and, therefore, in fact the initial order of appointment ought to have been issued by the management on probation for a period of 2 years as per rules. Be that as it may, looking to the above fact and circumstances, the management ought to have held an enquiry before his service was terminated simplicitor on the charges of inefficiency and misconduct. The termination of his service has thus to be held as illegal and the same is liable to be set aside."::: Downloaded on - 09/06/2013 14:17:00 :::
✭✑✮ With these observations, the Division Bench directed the Management to reinstate the petitioner forthwith.
16. In President, Mahila Mandal, Sinnar and another ..vs..
Sunita Bansidhar Patole; 2007 (2) Mh. L. J. 105; in spite of permanent vacancy of a teacher, the Management issued appointment orders every year and the employee was continued to work as teacher from December-1987 till 01.05.1992, when her services were terminated.
The School Tribunal directed the Management to reinstate the teacher.
In the writ petition filed before the High Court, the learned Single Judge observed as follows:-
"14. Once it is clear that the post wherein the respondent was appointed was a permanent vacancy, unless it is specifically disclosed by the Roster that the same was meant to be filled in by appointment of a reserved category candidate, the provisions of section 5(1) of the M.E.P.S Act are clearly attracted. In the case in hand, it is not in dispute that the post which was occupied by the ::: Downloaded on - 09/06/2013 14:17:00 ::: ✯★✰ respondent was a permanent vacancy. The contention that it was for reserved category candidate is already found to be devoid of substance.
Obviously, when the respondent was duly selected and appointed by issuing appropriate order of appointment on 1st July, 1988, the same was to be considered as in terms of the provisions of law comprised under section 5(1). Once there is an appointment in accordance with the provisions of law comprised under section 5(1) and the candidate so appointed completes period of two years of service, the provisions of section 5(2) are naturally attracted.
15. It was, however, sought to be contended that provisions of section 5(2) would be attracted only in case where the person is appointed on probation. Every appointment made under section 5(1) is deemed to be on probation till the person appointed completes period of two years and that is the intent behind sub-section (2) of Section 5 of the said Act. It is pertinent to note that phraseology of sub-section (2) clearly discloses that every person appointed to fill permanent vacancy "shall be on probation" for a period of two years and ::: Downloaded on - 09/06/2013 14:17:00 ::: ✱✜✲ it further provides that subject to the provisions of sub-sections (3) and (4) of section 5 "he shall on completion of this probation period of two years be deemed to have been confirmed"
16. Evidently, it provides for a deemed confirmation on completion of period of two years without any requirement of specific confirmation order by the management in that regard. Being so, in the case in hand, once the respondent had completed a period of two years from the date of appointment under letter dated 1st July, 1988 she ought to have been deemed to have been confirmed and for the same reason her service could not have been terminated without following the procedure prescribed by law for termination of service of a permanent employee, which obviously includes issuance of notice, charge-sheet, enquiry etc. before passing an order of termination of services. The management admittedly has not done any such things.
17. .....
18. The decision of the Apex Court in Bhartiya Gramin Punarrachana vs. Vijay Kumar's case (supra) is of no help to the petitioners wherein the ::: Downloaded on - 09/06/2013 14:17:00 ::: ✳✵✴ Apex Court while considering the scope of section 5(2) had held that:-
"A plain reading of section 5(2) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act would show that it applies to a person who is put on probation consequent upon his appointment in a permanent vacancy."
19. Referring to the above quoted observation, it was sought to be contended that the appointment has to be on probation and only thereupon the provisions of sub-section (2) of section 5 would be attracted. As already observed there is nothing called "appointment on probation". Once the appointment is made in terms of section 5(1) it takes colour of appointment on probation, by virtue of the provisions comprised under sub-section (2) and that is what has been held by the Apex Court in the above decision."
With these observations, the petition was dismissed.
17. Similar view has been taken in respect of the procedure to be followed for the purpose of appointment against permanent vacancy in Shikshan Prasarak Mandal, Wani ..vs.. Presiding Officer, ::: Downloaded on - 09/06/2013 14:17:00 ::: ✶✜✷ School Tribunal, Amravati and anr.; 2005 (4) Mh. L. J. 485 wherein learned Single Judge of this Court observed in para 7 as follows :-
"7. The provisions of section 5 of the MEPS Act require management to fill in every permanent vacancy in a private school by the appointment of a person duly qualified to fill such vacancy and sub- section (2) thereof states that every person appointed to fill a permanent vacancy shall be on probation for a period of two years. The provisions of Rule 10 which stipulate categories of employees states that the employees shall be permanent or non-
permanent. Non-permanent employees may be either temporary or on probation. A temporary employee is one who is appointed to a temporary vacancy for a fixed period. Thus, in view of mandate of section 5(1) of the MEPS Act, it is apparent that if the management wanted to show that respondent No. 2 was a temporary employee, it was incumbent upon the petitioner management to produce material before it to show that respondent no. 2 was appointed against a vacancy which was of temporary nature. The perusal of judgment of the School Tribunal reveals that no such material has been produced. In the absence of any such material and ::: Downloaded on - 09/06/2013 14:17:00 ::: ✸✜✹ the fact that respondent no. 2 was continued for two sessions, the School Tribunal has drawn an inference that respondent No. 2 was continued on probation.
The qualifications of respondent No. 2 are not in dispute and also there is nothing on record to gather that his performance or behaviour during this period was not satisfactory. It is in this background that the School Tribunal has found that the order of termination is in violation of section 5(3) of the MEPS Act and Rule 28(1) of the MEPS Rules."
Similar view is also taken in Nehru Jankalyan Bahu-
Uddeshiya Shikshan Sanstha and another ..vs.. Mohan Suryabhan Wanjari and another; 2003 (1) Mh. L. J. 425.
18. The learned counsel for the petitioner-Management relied upon a Division Bench Judgment in Priyadarshini Education Trust and others ..vs.. Ratis (Rafia) Bano d/o Abdul Rasheed and others; 2007 (6) Mh. L. J. 667. In that case, the teacher was appointed on 15.06.1987 for one academic year on temporary basis and similar orders were issued year after year till 13.06.1994 when the said teacher and several other staff members were enblock removed by ::: Downloaded on - 09/06/2013 14:17:00 ::: ✺✑✻ oral termination orders. It was a private school getting grant-in-aid.
After referring to number of authorities including the President, Mahila Mandal, Sinnar and another (supra), the Division Bench came to the conclusion that unless the appointment is made after following due procedure laid down in Section 5 of the Act and Rule 9 of the Rules, the appointment cannot be treated as appointment on probation and the employee cannot get the benefit of permanency. The Division Bench gave emphasis on the procedure of selection and appointment by issuing appropriate orders in terms of provisions of Section 5(1) of the Act which requires that the appointment shall be made by School Committee. The Division Bench found that it is necessary that the teacher must be duly selected and appointed. After referring to the observations made in President, Mahila Mandal, Sinnar and another (supra), the Division Bench observed in para 8 as follows:-
"8. ........
We have highlighted later half for the purpose of emphasis and it indicates that for deemed confirmation to come into play, it is necessary that the teacher must be duly selected and appointed, his appointment must be on a clear permanent vacancy ::: Downloaded on - 09/06/2013 14:17:00 ::: ✏✬✎ and once these requirements are fulfilled, he would be benefited by section 5(2) on completion of service for two years. We have already indicated hereinabove that in the writ petition, there is hardly anything to indicate that the teacher in our case was appointed after due process of selection either in the year 1987 or in the year 1992."
After referring to Rule 9 about appointments of staff, the Division Bench considered the provisions of Sub Rule (8). It appears from the observations made in para 11 that it was argued that the procedure laid down in sub Rule (8) is applicable only for the purpose of filling in the vacancy of reserved category and could not be applicable to the vacancy available in the open category. However this argument was rejected and Division Bench came to the conclusion that when the school is getting grant-in-aid, it is necessary that similar procedure should be followed. The Division Bench then referred to the provisions of Section 5(1) of the Act as well as Articles 14, 15 (4) and 16 (1) of the Constitution of India to emphasis the equality before law and equal opportunities relating to employment or appointment to any office under the State and observed as follows:-
::: Downloaded on - 09/06/2013 14:17:00 :::✫✑✪ "On reference to Rule 9 Sub-rule (2), it can be seen that appointments of teaching and non-teaching staff are required to be done by the School Committee and only the short term appointments in leave vacancies, of a duration not exceeding three months are permitted to be done by the Head, if so authorised by the School Committee.
In this context, we may also refer to the text of sub-section (2) of section 5, which is already re- produced hereinabove. From the opening part "every person appointed to fill in permanent vacancy shall be on probation for a period of two years.......", it is evident that once a person is selected in the manner prescribed and duly appointed, the Management or the School Committee has no option. Such a person must be appointed on probation. If there is a permanent vacancy and if a person duly qualified is selected in the manner prescribed and then duly appointed, the Management has no choice or option to appoint him for a limited period such as one academic year or shorter than that.
Thus, although sub-rule (3) or Rule 9 does not specifically speak of requirement of publication of vacancies by an advertisement and inviting ::: Downloaded on - 09/06/2013 14:17:00 ::: ✼☞✼ applications from candidates eligible and desirous of seeking appointment, as sub-rule (8) speaks for the purpose of filling up the vacancies reserved under sub-rule (7), requirement of such an advertisement must be read within the provisions for the reasons discussed hereinabove and which may be summarized, at the cost of repetition as follows.
(i) Statute is enacted for the purpose of regulating the recruitment in private schools in the State.
(ii) Interpretation that sub-rule (3) of Rule 9 does not prescribe publication of advertisement, when read in the light of sub-rule 8, would be discriminatory and capable of promoting arbitrariness and nepotism.
(iii) Such interpretation would be against the spirit of Articles 14 and 16 of the Constitution, and, therefore, interpretation which would make Rule 9 unconstitutional will have to be rejected.
(iv) When sub-section (2) of section 5 compels the Management to appoint eligible, duly selected candidate only on probation, the backdoor entry of a person who alone knows about existence of vacancy cannot be accepted as palatable interpretation either of Rule 9 or section 5 read with Rule 9."::: Downloaded on - 09/06/2013 14:17:00 :::
✽☛✾ In para 12, the Division Bench referred to several other authorities, particularly Secretary, State of Karnataka..vs.. Umadevi;
2006 (4) SCC 1 wherein Their Lordships have observed as follows :-
"Public employment in a sovereign socialist secular democratic republic, has to be as set down by the Constitution and the laws made thereunder. Our constitutional scheme envisages employment by the Government and its instrumentalities on the basis of a procedure established in that behalf. Equality of opportunity is the hallmark and the Constitution has provided also for affirmative action to ensure that unequals are not treated as equals."
After referring to the above observations, the Division Bench, in the same paragraph, observed as follows:-
"Public employment in a sovereign socialist secular democratic republic, has to be as set down by the Constitution and the laws made thereunder. Our constitutional scheme envisages employment by the Government and its instrumentalities on the basis of a procedure established in that behalf. Equality of opportunity is the hallmark, and the Constitution has provided also for affirmative action to ensure that ::: Downloaded on - 09/06/2013 14:17:00 ::: ✿✬❀ unequals are not treated as equals."
No doubt, the observations borrowed by us from the matter of Umadevi (supra), as also Article 16, speak about employment or appointment to any office under the State or its instrumentality. When we drew attention to learned Advocate Shri Kazi for the teacher to the observations of the Supreme Court in Umadevi's case, he could have argued that the management is neither "State" nor "instrumentality of State". However, it cannot be ignored that the school is a grant-in-aid school and, therefore, as is the practice in the State, it must be receiving entire amounts required for paying salaries and allowances to the teaching and non-teaching staff, by way of grants. It must also be enjoying non-salary grants.
(Emphasis supplied) From these observations, it should be clear that the Division Bench gave much emphasis on the procedure to be adopted for the purpose of selection and recruitment because the School involved in the matter was a grant-in-aid school and the school was getting grant-
in-aid from the Government and, therefore, it was bound to make selection after following the due procedure.
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19. The learned counsel for the petitioner vehemently contended that the observations made by the Division Bench will be equally applicable to the present matter. In my considered opinion, the observations made by the Division Bench will be applicable to appointment made by School getting grant-in-aid and cannot be applied strictly to the Schools which are not getting any grants from the Government. As per the provisions of Section 5 read with Rule 9, the Management was bound to fill in the permanent vacancy as soon as possible by appointment of qualified person by following necessary procedure. However, in spite of the fact that the vacancy was available for long time and at least for six years, the Management did not take steps to make appointment against the permanent vacancy and issued the orders year to year and thus kept hanging sword of insecurity of service on the head of the employee. If the observations made by the Division Bench in respect of the grant-in-aid school are held to be applicable to the non aided schools, it will amount to rewarding the Management for non compliance of the rules and for ::: Downloaded on - 09/06/2013 14:17:00 ::: ❄❆❅ making of appointments of qualified and needy persons year to year for ulterior motives and their own benefits.
20. The learned counsel for the petitioner-Management further placed reliance upon Krishna Dnyandeo Lad ..vs.. Chairman, Rahimatpur Panchkrushi Shikshan Mandal and others; 2008 (4) Mh.
L. J. 309. In that case, it was observed that the status of permanency cannot be attained unless the teacher was appointed on probation despite the fact that he worked continuously for six academic years and at the end of every academic year tenure of his employment has come to an end by efflux of time. It is material to note that in that case also the post of Lecturer in English was reserved for certain backward category and the temporary appointment was given to the petitioner, who did not belong to any category from the year 1986-87 till the academic year 1989-90.
21. In the present case, as noted earlier, the Management has not placed on record anything to show that this vacancy could be ::: Downloaded on - 09/06/2013 14:17:00 ::: ❇❃❈ treated as temporary vacancy either because it was reserved for a particular category or because it was leave vacancy. Learned counsel for the petitioner placed reliance upon several other authorities including Hindustan Education Society and another ...vs.. Sk. Kaleem Sk. Gulam Nabi and others; (1997) 5 Supreme Court Cases 152. In that case, the respondent was appointed on purely temporary basis for a period of 11 months in a clear vacancy. After expiry of the said period, the services were to stand terminated without any notice as per appointment order and on expiry of that period his services were terminated. In that case, respondent no. 1 had served only for eleven months and as per terms of the appointment order. In my opinion, said authority is not applicable to the present case.
In Mathuradas Mohta College of Science, Nagpur ..vs..
R. T. Borkar and ors; 1997 (2) Mh. L. J. 168 respondent was appointed as part time teacher on clock hour basis at the rate of Rs.10/- per clock hour on 01.10.1981 to teach subject of Biology (Botany) even if he possessed M.Sc. Degree in Zoology. Even during the same session his services were terminated on 16.03.1982. In the ::: Downloaded on - 09/06/2013 14:17:00 ::: ❉❃❊ circumstances, the Division Bench of this Court held that as there was no work for him he could not be treated to have been appointed on probation.
1997 (3) Mh. L. J. 697 the petitioner was not a trained teacher and he was appointed purely on temporary basis against permanent vacancy.
As he was not qualified to be appointed on permanent basis, he served on temporary basis from 30.06.1986 till 01.05.1988 by different orders. It was held that he could not claim to have been appointed on regular basis.
In Sangram Vishwanath Patil ..vs.. Maharashtra Education Society, Udgir and others; 2001 (2) Mh. L. J. 188, the petitioner was appointed in leave vacancy and not to fill in a permanent vacancy. He served in that position from 13.09.1979 till 14.01.1984. The Lecturer who was holding the permanent post returned from leave on 01.06.1982. After that, the services of the petitioner came to be terminated by order dated 15.12.1983. From this ::: Downloaded on - 09/06/2013 14:17:00 ::: ❋✬● it is clear that he was appointed purely on temporary basis and on the temporary vacancy, therefore, he could not get permanency.
In the case of Bhartiya Gramin Punarrachana Sanstha ..vs.. Vijay Kumar and others; 2003 (1) Mh. L. J. 563, respondent no. 1 was appointed as Laboratory Attendant for two years from June 24, 1996 to June 23, 1998. The appointment was approved by Deputy Director only for one academic year 1996-97 and no approval was forthcoming for the subsequent academic year, therefore, his services were terminated with effect from 17.09.1997 i.e. even before completion of contract period of two year. The Supreme Court held that in the given circumstances, respondent no. 1 could not be deemed to have been appointed on probation nor he could claim the benefit of permanency. As his appointment was for two years, he was held entitled to salary for unexpired period till 23.06.1998.
22. In view of the facts and the legal position discussed above, I find that none of the above authorities relied upon by the learned counsel for the petitioner can render any assistance to the ::: Downloaded on - 09/06/2013 14:17:00 ::: ❍❏■ petitioner as the authorities will not be applicable to the facts of the present case. Before concluding, it may be noted that it was initially contended that appointment of respondent no. 1 was not approved by the Education Officer and, therefore also he cannot claim the benefit of permanency. However, this contention was not pressed at the time of arguments in view of the Full Bench Authority of this Court in St. Ulai High School and another ..vs.. Devendraprasad Jagannath Singh and another; 2007 (1) Mh. L. J. 597 where in para 13 (iii), the Full Bench observed as follows:-
"13 (iii) Neither the MEPS Act, 1977 nor the Rules framed thereunder mandate the grant of approval by the Education Officer as a condition precedent to a valid order of appointment. The requirement of approval which relates to the disbursal of grant in aid is a matter between the management and the State and want of approval will not invalidate an order of appointment;"
From this it is clear that for valid order of appointment the prior approval of Education Officer is not mandate of law for the same reason, if the Management of non-grant school makes ::: Downloaded on - 09/06/2013 14:17:00 ::: ✮✬✭ appointment without following procedure, the Education Officer may refuse approval to that appointment and in future of grant-in-aid is sanctioned, still Government may refuse to give any grant in respect of the post which is not approved. Therefore, on this count, there cannot be any difficulty in giving protection to the job of respondent.
23. Taking into consideration all the facts and circumstances, it is clear that there was a permanent vacancy available in the year 1986 and it continued to be available till 1992. The Management was bound to fill in vacancy by following procedure laid down in Section 5 and Rules 8 and 9. Respondent no. 1 was holding necessary educational qualification for being appointed to the post and he was appointed to fill in that permanent vacancy even though the appointment was made on year to year basis. It is material to note that in the first appointment order dated 28.06.1986 in para 2 of the order, words "Your appointment is on probation for a period of two years" were struck off indicating that he was being appointed on leave vacancy, which was not a fact. In the second appointment order dated ::: Downloaded on - 09/06/2013 14:17:00 ::: ✾★✽ 23.06.1987 words "leave/deputation" were struck off and even words "Your appointment is on probation for period of two years" were struck off. As per format of the order, if it was not appointment against the temporary vacancy because of leave or deputation, the appointment should have been on probation for a period of two years. Same observation will be application to the orders issued on 23.06.1990 and 22.06.1991. Thus, the Management, while filling the permanent vacancy, issued orders appointing respondent no. 1 year to year and respondent no. 1 continuously worked for six years except for break during vacation for which the Management was bound to pay salary.
Therefore, it could be held that for six years, the petitioner continuously served in the same school as Assistant Teacher and that too on the permanent vacancy.
24. In view of the legal position settled in number of cases referred to above, it must be held that appointment of respondent no.
1 was on probation against permanent vacancy and he could not not be removed without following procedure laid down in Section 5 of the ::: Downloaded on - 09/06/2013 14:17:00 ::: ❑☞❑ Act. No such procedure was followed and, therefore, learned Presiding Officer, School Tribunal, rightly came to the conclusion that termination was illegal and liable to be set aside.
25. The services of respondent no. 1 were terminated with effect from 09.07.1992 and learned School Tribunal passed the order in appeal on 06.02.2001 directing to reinstate respondent with full back wages. In similar circumstances in President, Mahila Mandal, Sinnar and another (supra) this Court had modified the order passed by the School Tribunal so that the concerned teacher would be paid 25% of back-wages from the date of termination till the date when the Tribunal passed the order for reinstatement and also directed to pay 75% of the back-wages from the date of order of the Tribunal till reinstatement. In my considered opinion, similar order may be passed in the present case also.
26. For the aforesaid reasons, the petition, to the extent it challenges reinstatement of respondent no. 1, stands dismissed.
::: Downloaded on - 09/06/2013 14:17:00 :::▲❏▼ However, order passed by School Tribunal, Nagpur to pay full back wages from 09.07.1992 till the date of reinstatement, stands modified so that the petitioner-Management shall pay 25% back wages from 09.07.1992 till 06.02.2001 and 75% back wages from 06.02.2001 till the date of actual reinstatement. Respondent no. 1 shall be reinstated within 30 days from this date.
Writ petition stands disposed of. Rule accordingly. No orders as to costs.
JUDGE kahale ::: Downloaded on - 09/06/2013 14:17:00 :::