Bombay High Court
Dnyanopasak Shikshan Prasarak Sanstha ... vs Ku. Rekha D/O Vishwanath Ingole, Rekha ... on 18 December, 2007
Equivalent citations: 2008(2)MHLJ565
Author: R.C. Chavan
Bench: K.J. Rohee, R.C. Chavan
JUDGMENT R.C. Chavan, J.
1. These four appeals by Management and teachers are directed against a judgment by a learned Single Judge in Writ Petition Nos.107 of 1994 and 563 of 1994 filed by two teachers of Dnyanopasak Shikshan Prasarak, Manora.
2. Dnyanopasak Shikshan Prasarak, Manora, established an Arts and Commerce College in pursuance of permission granted by the State and Amravati University on 28-2-1986 and 7-10-1986 respectively. In the year 1987-88, the classes of BA Part-I and Part-II were started and in 1988-89, the classes of BA Part-III were added as natural growth. The College was permitted to admit students offering English and Marathi as compulsory subjects, and History, Economics and Political Science as optional subjects. The Management issued an advertisement for appointments of lecturers in subjects for which full-time posts of Lecturers were admissible. These Lecturers were appointed on an year-to-year basis. It is not in dispute that the College has continued the aforesaid courses and was not required to be closed down in the first four years of gestation period.
3. Facts pertaining to the appointments of appellants Shri Ravindra Dadarao Deshmukh and Ku. Rekha Visjwanathrao Ingole in Letters Patent Appeal Nos.70 of 2006 and 71 of 2007 respectively are as under:
4. Shri Ravindra Dadarao Deshmukh was duly qualified for appointment as a Lecturer in Political Science. He was appointed for the first time on 7-9-1988 in pursuance of an advertisement dated 17-9-1987 and actually joined his post of Lecturer on 22-11-1988. This appointment came to an end on 19-4-1989 at the close of the academic session. He was again selected in pursuance of the advertisement dated 12-7-1989, appointed on 22-8-1989 and actually joined on 23-8-1989. This appointment continued till 20-4-1990, that is, till the end of the academic session. He was selected for the third academic session in pursuance of an advertisement and appointed by order dated 5-8-1990. He resumed his duties on 6-8-1990. According to the Management, Shri Ravindra Deshmukh voluntarily abandoned the employment on 20-11-1990, whereas it is the contention of Shri Ravindra Deshmukh that he was prevented from discharging his duties. His term of appointment was to come to an end on 20-4-1991, that is, at the end of the academic session. His services were, however, terminated by notice dated 18-31991, with effect from 20-4-1991.
5. Thereafter fresh advertisement was issued for filling up the vacancy and one Shri Kishore Muley was selected and appointed for the said post. It is, however, not in dispute that Shri Kishore Muley is liable to be dislodged from the position which he holds, since a writ petition filed by him has already been dismissed.
6. Ku. Rekha Ingole joined the services of the Institution on 1-9-1986 as a Clerk. She had scored 56.67% marks in her HSSC Examinations; 49% marks in the examinations leading to the degree of BA; and 54.25% marks in the examination leading to the degree of MA. In pursuance of an advertisement issued by the Management, which had the necessary approval of the University, Ku. Rekha Ingole applied for being appointed as Lecturer in Marathi. The qualification prescribed for the said post was high second class, i.e. 54% marks or above at the Master Degree level and second class at the Graduate level. She was appointed as a part-time Lecturer on 24-8-1988 for a period of one year. On 12-8-1989, she was re-appointed on the said post. By notice dated 18/20-3-1991, her services were terminated with effect from 20-4-1991. Her appointment as a full-time Lecturer in Marathi had been approved by the University on 8-6-1990.
7. Both these teachers challenged their termination by preferring appeals before the College Tribunal. The Tribunal, by its judgments dated 3-12-1993 and 25/16-11-1993 respectively, dismissed the appeals. The teachers challenged these judgments by filing writ petitions. The learned Single Judge of this Court, who heard these petitions, substantially allowed the petitions directing the Management to reinstate both the teachers, but granted only 30% back wages. The teachers are aggrieved, because their claim for back wages has been restricted to only 30% and have, therefore, preferred two appeals. The Management is aggrieved, because of the direction to reinstate the teachers and to pay them 30% back wages and has, therefore, preferred the other two appeals.
8. We have heard Shri R.L. Khapre, learned Advocate for the Management, and S/Shri H.A. Deshpande and M.M. Sudame, learned Advocates for teachers Shri Ravindra Deshmukh and Ku. Rekha Ingole, respectively.
9. Except for the question of abandonment of service by Shri Ravindra Deshmukh, there is not much dispute between Shri Deshmukh and the Management on facts of his case. Even as regards, this abandonment of service, we find that the order terminating service of Shri Ravindra Deshmukh was issued by the Management on 18-3-1991 and was to take effect from 20-4-1991. Therefore, it could not be said that Shri Ravindra Deshmukh had not rendered service till 20-4-1991. Absence need not be equated to not being in service. Therefore, for the purpose of these proceedings, we would take Shri Ravindra Deshmukh to have been in service till 20-4-1991.
10. Though initially the question as to whether there was enough workload for the subject of Political Science, which Shri Ravindra Deshmukh was to teach, was raised, there is no dispute now that since 1988-89 there was workload for appointing a full-time teacher to teach Political Science and that appointment of Shri Ravindra Deshmukh was accordingly made. As regards Ku. Rekha Ingole, there is, however, a dispute on facts as to whether there was and is enough workload for engaging a full-time teacher for the subject of Marathi.
11. On behalf of Ku. Rekha Ingole, it has been contended that there is enough workload for Marathi subject, since some students had offered Marathi Literature as optional subject and were given instructions in the said subject in the College. Reliance has been placed by Ku. Rekha Ingole on a letter dated 20-2-1990 by the Management, which is at Annexure 2 to the affidavit-in-reply filed by Ku. Rekha Ingole in Letters Patent Appeal No. 303 of 2005. By this letter, the Management had conveyed to the University that the workload of five teaching hours each was available for Three-Year BA Degree Course for teaching Marathi Literature as optional subject in addition to eight hours of workload for compulsory Marathi subject at the said Three-Year BA Degree Course. It seems that in pursuance of this letter sent by the Management, the University accorded approval to the appointment of Ku. Rekha Ingole as a full-time teacher for teaching Marathi. Shri M.M. Sudame, learned Advocate for Ku. Rekha Ingole, submitted that in view of this letter by the Management and the approval granted by the University, there should be no doubt that there was enough workload for appointment of Ku. Rekha Ingole as a full-time teacher in Marathi.
12. His learned adversary, Advocate Shri R.L. Khapre for the Management, submitted that there was no question of the College being permitted to impart instructions in Marathi Literature, because no such permission was granted. He drew our attention to report of the local Enquiry Committee, dated 13-5-1988, which is document No.XXXIX in Letters Patent Appeal No. 303 of 2005. This shows that the courses offered by the College were compulsory subjects of English and Marathi and optional subjects of History, Economics and Political Science. It does not refer to Marathi Literature as optional subject in which instructions were permitted to be imparted in the College. Advocate Shri R.L. Khapre pointed out that for imparting instructions in any subject, permission of the University has to be obtained, and since no such permission was in fact obtained by the College, there is no question of there being any students admitted to study Marathi Literature in the College. As for the statement of marks of students, who had allegedly appeared for examination in optional subject of Marathi Literature through the College, the learned Advocate submitted that external students are permitted to apply through the College for such subjects under the relevant Statute and the mark-lists pertained to such students, who had filled in their forms through the College, but did not receive any instructions in Marathi Literature in the College. He also drew our attention to Clauses 5-A and 5-B of OrdinanceNo. 6, which is extracted in Document No.XL, annexed to the petition.
13. The provisions are to the effect that the students should not be admitted for receiving instructions in the subjects, which are not taught in the College unless arrangements for teaching the subjects are made by the University or the College with prior approval of the University. College students intending to study languages compulsory or optional are permitted to study such subjects in the College where the provision for teaching is not made by being allowed to appear in the examination on the basis of private study in the subject under a teacher or in an Institution or College recognized for the purpose by the University. The Colleges, where the provision for such teacher is not made, are permitted to appoint contributory or part-time Lecturers, subject to Government norms. Thus, without approval of a course, a full-time teacher could not have been appointed. Thus, workload for optional Marathi would have to be excluded. Since the workload for teacher in Marathi language was only eight lectures, only a part-time appointment could have been made.
14. In view of this, Ku. Rekha Ingole's claim of having been appointed on a full-time post is not beyond the pale of doubt. Even so, it is not necessary for us to go into this question in view of the fact that the Management had itself written to the University seeking approval for her appointment as a full-time Lecturer. If the Management was ready to take this risk of appointing a full-time teacher in a subject which was not one in which the College was permitted to impart instructions, the Management would undoubtedly suffer. The contention of Advocate Shri R.L. Khapre for the Management that Ku. Rekha Ingole was herself instrumental in getting such letter, is of no avail, since the signatory of the letter -the Secretary of the Managing Committee -should have considered the implications before seeking approval to Ku. Rekha Ingole's appointment as a full-time teacher from the University. Thus, either because the workload was available, or because the Management could not have questioned availability of workload, in the circumstances enumerated above, the claim of both Shri Ravindra Deshmukh and Ku. Rekha Ingole to be full-time teachers in their respective subjects, cannot be questioned in these Letters Patent Appeals.
15. Next, we would come to the question of nature of appointment, which was offered to Shri Ravindra Deshmukh and Ku. Rekha Ingole. They had been appointed in pursuance of selection processes undertaken each year in pursuance of the advertisements issued for one year at a stretch. According to Advocate Shri R.L. Khapre for the Management, this was the only course open, since for the first four years, there could not have been a clear vacancy, which could have been advertised in view of clause 4 of Statute 53 of Amravati University, which reads as under:
4. A Teacher shall subject to the procedure of Selection and Appointment, be appointed in a clear vacancy in the first instance on probation for two years (24 months) from the date of his appointment, at the end of which he shall be confirmed, on the expiry of which he shall either be confirmed or his services dispensed with, provided that notice of such confirmation or termination of services shall be given atleast one month before the due date, in the absence of which it shall be construed that he has completed the period of probation satisfactorily and that he is deemed to be confirmed in service.
Provided that if any teacher already in service has completed two years of service temporary/probation in a clear vacancy, he will be deemed to be a confirmed teacher.
Explanation: It is hereby clarified that a clear vacancy means a vacancy which is not in a lien vacancy or leave vacancy and that the vacancy/post is in vogue in the Institution for not less than four years.
Therefore, according to Advocate Shri R.L. Khapre for the Management, in a new College, no vacancy could be a clear vacancy unless the College completed four years of its existence, and only thereafter a clear vacancy could be advertised and question of appointment of a teacher on such clear vacancy on probation for a period of two years would arise. Till then, the appointment would be on an year-to-year basis without counting for the purpose of confirmation in service. Therefore, according to Advocate Shri R.L. Khapre, the two teachers were holding temporary appointments on an year-to-year basis and the Management rightly terminated their services at the end of the academic session for which they had been appointed.
16. His learned adversaries contended that such was not the import of the explanation to Clause 4 of Statute 53 of Amravati University. It was only meant to ensure that the workload was consistent enough to justify a clear vacancy. The learned Advocates for the two teachers submitted that the provision could not be interpreted in order to keep such teachers on tenter-hooks all through the period of first six years of their appointments. They submitted that giving such a treatment to teachers in new Colleges would amount to exposing them to invidious discrimination, which was not intended. They submitted that the learned Single Judge has, therefore, rightly concluded that such a discrimination could not be practised.
17. Advocate Shri R.L. Khapre for the Management countered by submitting that there is no question of discrimination, since the teachers appointed on clear vacancies, which existed for a period of four years, cannot be equated with the teachers seeking employment in a newly established College. A newly established Institution and an Institution, which had been running courses for years, would constitute separate classes in themselves and, therefore, invocation of Article 14 of the Constitution in this situation was not warranted.
18. We are afraid that the learned Advocate for the Management has placed the question of classification in wrong perspective. The provision in Statute about clear vacancy does not at all refer to new or old Colleges. Even in established Institutions, additional workload for any subject may necessitate creation of a new vacancy. All that the Statute requires is that the post should continue in an Institution for a period of four years before it is treated as a clear vacancy. Therefore, the argument that new and old Colleges are classes in themselves justifying separate treatment, has to be rejected. What has to be found out is whether teachers being appointed to nascent posts could be treated differently from those seeking appointment to established posts in the matter of protection of their services. Whether the protection of interests of Management in case of appointments to emerging and unstable vacancies could be allowed to overshadow the need to provide protection to teachers in the matter of appointments. The need to balance these conflicting interests cannot be overlooked and it would be impermissible to abandon one interest for the other. The scope of explanation to clause 4 would have to be limited to protecting institutional interests without at the the same time exposing teachers to an unintended peril.
19. There can be no doubt that a person seeking appointment to a post which had been created on account of available workload would have to know that the consistency in workload has not been ascertained and, therefore, there is a risk of his appointment coming to an end, should the workload fall. It does not, however, follow that if the workload continues for and beyond four years, the appointee should be denied the benefit of having rendered service in such precarious circumstances. Advocate Shri R.L. Khapre does not have any quarrel with the proposition that for the purpose of increments and seniority, the first date of appointment of the concerned teacher would be counted. But he opposes computation of the same date for the purpose of confirmation without providing any logical basis for such distinction.
20. Advocate Shri R.L. Khapre submitted that it would not be possible to treat the first appointment as on probation, because of after completion of two years' period, the person would claim and be entitled to confirmation, though the vacancy itself was not clear. This may give rise to complications. However, this fear cannot justify denial to teachers of the benefits of service rendered by them when such anomalies or may be contradictions can be reconciled. Either the probation of such person could be taken to have fictionally extended till the vacancy became clear, or the initial appointment itself, which may not have been made on probation, could be fictionally treated to have been so made for the purpose of extending to the teacher the benefits of service rendered by him in a post, which subsequently becomes clear, because of consistency in the workload. Any other interpretation would result in depriving the teacher of benefits of service rendered by him for no fault on his part except that he applied for a post, the need whereof had arisen only recently. It would be necessary to fictionally relate back the date of availability of clear vacancy to the date on which the vacancy first arose, if the vacancy has continued for four years.
21. Advocate Shri R.L. Khapre for the Management submitted that in the cases of the two teachers, the advertisements were issued every year, selection was carried out by the Selection Committee as prescribed under the relevant Statute with representatives of the University, etc., and then the two teachers were given appointments every year. These yearly appointments are permissible and legal and, therefore, the two teachers must be held to have been appointed on an year-to-year basis. The learned Advocate drew our attention to a judgment of a learned Single Judge in Maharashtra Shikshan Sanstha and Anr. v. State of Maharashtra, through the Secretary, Department of Education, Mumbai and Ors. reported at , to support his contention that year-toyear appointments of teachers would be permissible in the first few years. The learned Single Judge observed that having regard to the fact that the School was granted recognition from year-to-year for a period of three years, appointments in question could have been made for an year at a time. The learned Single Judge also did not dispute .as a broad proposition. that such appointment would defeat the purpose of Section 5(2) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act. The observations would have to be read in the context of the fact that the school itself had been granted recognition on an year-to-year basis. In the present case, there are letters of the University on record to show that the University had accorded approval for appointment of the two teachers from 1988-89 onwards, clearly indicating that there was no need to appoint them on an year-to-year basis, subject possibly to the only caveat of workload being available.
22. At the cost of repetition, we may point out that since consistency of workload is required to be guaged over a period of four years in terms of Clause 4 of Statute 53 of Amravati University, ritual of annual appointments may not be improper. If, however, at the time of initial appointment the teacher concerned had undergone selection process through a regular Selection Committee on par with that of a selection of a regular teacher on a clear vacancy, this ritual could be a mere formality. All that the Management would have been required to do is to issue fresh orders of appointments on year-to-year basis to avoid being placed in a position of disadvantage by issuing an order of appointment on probation in anticipation of the vacancy continuing for four years.
23. The learned Advocate for the Management submitted that under Clause 38 of Ordinance No. 24 of Nagpur University, it is not necessary to appoint temporary teacher by going through the process prescribed. A Selection Committee referred to in Clause 39 of the said Statute has to meet only for selecting teachers other than temporary teachers and only such regular teachers have to be appointed on a written contract in Schedule A of Ordinance No. 24. The learned Advocates for the two teachers submitted that whether or not such agreement in Schedule A is executed, the appointments of teachers are deemed to have been made as per this Schedule A and, therefore, a teacher would be deemed to be on probation for one year, extendable for another year. For this purpose, they relied on a judgment of Full Bench of this Court in Premlata v. Governing Body reported at 1981 Mh.L.J. 332.
24. There could be no question of any implied agreement under Schedule A with the two teachers, since their appointments were on temporary basis for a period of one year at a time. It does not, however, follow that in spite of continued availability of workload in the successive years, the Management would have had the power to terminate the services of these two teachers and take others in their place by simply resorting to the fact that these teachers had been appointed for a period of one year only. If the vacancy continued in the succeeding year and if there was nothing amiss about the work or conduct of the teachers concerned, they would be entitled to be reemployed in the successive years. In other words, the Management, in our view, would not be able to derive any undue advantage from the fact that a clear vacancy could not be said to have arisen till it continued for a period of four years.
25. In this case, both the teachers had been continued and their appointments had also received approval from the University. In respect of Shri Ravindra Deshmukh, the appointment order dated 22-8-1989, which is document No. 12 in Letters Patent Appeal No. 14 of 2006, would show that Amravati University, by its letter dated 4-4-1990, had approved the appointment of Shri Ravindra Deshmukh as a full-time teacher in Political Science for the Sessions 1988-89 onwards.
26. Shri R.L. Khapre, learned Advocate for the Management, submitted that even if the two teachers are taken to have been fictionally appointed on probation in the year 1989, their probation would have been over only in the year 1991. The Management had terminated their services with effect from 20-4-1991, that is before the probation period came to an end. Such discharge of probationers without attaching any stigma could not have been questioned and, therefore, the College Tribunal justifiably dismissed the appeals of the two teachers and the learned Single Judge was not justified in allowing the petitions.
27. Shri H.A. Deshpande, learned Advocate for Shri Ravindra Deshmukh, submitted that Shri Deshmukh had been initially appointed on 7-9-1988 and had actually joined the service on 22-11-1988. If his appointment is taken to be fictionally on probation from that date, he would have completed probation on 21-11-1991, that is well before his services were terminated. He submitted that a teacher, who had served till the last date of the academic session and was re-appointed upon opening of academic session, is deemed to have been in employment even during the summer vacations, and such vacations are required to be counted as duty in view of Clause 49 of Ordinance No. 24 of Nagpur University. This aspect has also been considered in the judgment of a Division Bench of this Court in M.I. Masih v. Peoples' Welfare Society and Ors. reported at 1982 Mh.L.J. 271. The question before the Court was whether the expression .two years. in Schedule A of Ordinance No. 24 (College Code) referred to two academic years or two calender years, that is a 24-month period. After considering the provisions of the Ordinance, the Division Bench concluded that reference to .two years. in Schedule A was to two twelve-calender-months period. While examining this question, the Court had also counted vacations as periods spent on duty. In view of this judgment, it would be necessary to find out whether the two teachers could be said to have been completed 24 months of service before their services were terminated with effect from 20-4-1991.
28. According to Advocate Shri R.L. Khapre for the Management, Shri Ravindra Deshmukh had actually served only for 16 months, that is from 22-11-1988 to 19-4-1988, 23-8-1989 to 20-4-1990, and 6-8-1990 to 20-11-1990. The first fault in this computation is that the vacation periods are excluded. The second is that Shri Ravindra Deshmukh is shown to have served only till 20-11-1990 alleging that he had voluntarily abandoned the College. As already observed by us, the question as to whether Shri Ravindra Deshmukh had abandoned the duties or was prevented from performing his duties, is in dispute and in any case, how to deal with the absence of Shri Ravindra Deshmukh would be an issue . distinct from whether Shri Deshmukh was in employment or not. It is not shown that the services of Shri Deshmukh were terminated from 20-11-1990. They were terminated from 20-4-1991. Therefore, by any reckoning, Shri Ravindra Deshmukh had already put in 24 months of service when his services were sought to be terminated on 20-4-1991.
29. As for Ku. Rekha Ingole, according to the chart produced in Letters Patent Appeal No. 303 of 2005, the Management contends that Ku. Rekha Ingole served from 24-8-1988 to 24-8-1989 and from 13-8-1989 to 20-3-1990, that is for 19 months only. It seems that Ku. Rekha Ingole was actually officiating as Principal after 20-3-1990 and, therefore, the contention that her services were terminated on 20-3-1990 does not appear to be correct. The notice of termination of her services was issued on 18-3-1991 and her services stood terminated on 20-4-1991. If this is accepted, even Ku. Rekha Ingole had put in more than 24 months, when her services were actually terminated.
30. Clear vacancies would have arisen four years after the College was started in 1987-88. A full-time vacancy in Political Science arose in 1988-89 and so a clear vacancy for Political Science would have become available in the year 1992-93. Advocate Shri R.L. Khapre for the Management submitted that since the services of the two teachers were terminated in 1991 itself, that is before clear vacancies arose, they were not liable to be adjusted on the clear vacancy. We are afraid that this line of reasoning is impermissible. As already indicated by us, if the workload was available, there was no reason to terminate the services of the two teachers unless their performance or conduct was not satisfactory. Except for an allegation that Shri Ravindra Deshmukh had abandoned the service from 20-111990, which allegation is contested by Shri Deshmukh, there is nothing to indicate that his performance or conduct was not satisfactory. As for Ku. Rekha Ingole, the Management itself states that she was officiating as Principal and, therefore, there is no question of her performance not being up to mark. Therefore, there was no warrant for terminating the services of the two teachers with effect from 20-4-1991 and then saying that they were not in service when clear vacancy arose in the year 1992.
31. This leaves only the question of whether Ku. Rekha Ingole was eligible to be appointed as a teacher. Advocate Shri R.L. Khapre for the Management submitted that Ku. Rekha Ingole did not possess requisite qualification for appointment as a teacher, since she did not possess .B+. in her Master's Decree and also did not have appropriate percentage of marks in her graduation as well as in HSSC examination. We have already indicated the percentage of marks obtained by Ku. Rakha Ingole and there can be no doubt that she had not secured 55% marks in her Master's Degree. Advocate Shri M.M. Sudame for Ku. Rekha Ingole made available for our perusal the copies of information received by him from Amravati University upon Ku. Rekha Ingole's application for such information under the Right to Information Act. This includes copy of an advertisement approved by the University in response to which Ku. Rekha Ingole's candidature for Lecturership had been considered. The advertisement shows that the qualification for the post of Lecture was .high second class., i.e. 54% or above marks at Master's Degree level and second class at graduate level. Advocate Shri M.M. Sudame further pointed out that .high second class. itself has been explained by the University as under in the communication received by him:
Person having secured marks more than the midpoint of the prescribed minimum marks of passing an examination in the second Division and the prescribed minimum marks for passing an examination in the first division by University shall be deemed to have passed that examination in a high second class.
Therefore, according to him, since the minimum percentage prescribed for second class is 45 and that for first class is 60, the midpoint would be 52.5%, which was less than the percentage of marks obtained by Ku. Rekha Ingole at Post Graduate level. Therefore, the contention that Ku. Rekha Ingole did not possess the prescribed minimum qualification, raised by the Management, has to be rejected. In view of this, we find no infirmity in the impugned judgments passed by the learned Single Judge holding that the two teachers were entitled to reinstatement.
32. The two teachers have taken exception to the judgments to the extent of their being held entitled to only 30% back wages. Considering the long period, which had elapsed since their termination in the year 1991 till today, we find that the order granting 30% back wages is rational and does not call for any interference.
33. In the result, all the four appeals are dismissed.