Bombay High Court
National Education Society'S High ... vs Lulomool Monachary (Mrs.) on 27 March, 1987
Equivalent citations: 1987(2)BOMCR521
JUDGMENT S.M. Daud, J.
1 This petition under Article 226 of the Constitution is to assail the verdict of the School Tribunal in an appeal before it vide section 10 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (Act).
2. As I do not propose to dilate at length on the several points that have been raised by Counsel, the facts to be stated here are restricted to those relevant for a consideration of the points at issue.
The petitioner runs a High School-cum-Junior College in Bombay and one of the teachers working there, in a permanent vacancy, was Mrs. Kochar. That lady left the employment of the petitioner in about February 1984, To fill in the vacancy, petitioner issued a letter of appointment to the respondent, which to the extent relevant, reads thus :---
"Your appointment is purely temporary for a period of three months from 4-2-1984 to 30-4-1986 in the leave/deputation vacancy. After expiry of the above period, your services shall stand terminated without any notice."
For the academic session 1984-85, there was a fresh letter of appointment, and being dated 13-6-1984, specified thus :---
"Your appointment is purely temporary for a period of one year from 14-6-1984 to 30-4-1985...deputation vacancy. After expiry of the above period, your services shall stand terminated without any notice."
For the academic session 1984-85, there was a fresh letter of appointment, and being dated 13-6-1984, specified thus:---
"Your appointment is purely temporary for a period of one year from 14-6-1984 to 30-4-1985...deputation vacancy. After expiry of the above period, your services shall stand terminated without any notice."
After the expiry of the academic session 1984-85, on 21-6-1985, respondent received the last letter of appointment which spoke thus :---
"Your appointment is purely temporary for a period of one year from 14-6-1985 to 30-4-1986 in the Higher Secondary in reserved vacancy. After expiry of the above period, your services shall stand terminated without any notice."
For the academic session 1986-87, applications were invited by the petitioner---it being made clear that it was under an obligation to fill in vacancies by appointment of reserved candidates, provided such candidates came forward and sought employment with it. Respondent not having received a fresh appointment for the academic session 1986-87, went in appeal to the tribunal. Her grievance was that she had been appointed in a permanent vacancy, and, had after the expiry of two years, become permanent. Petitioner had no right to refuse a renewal unto her. The claim put forward by the respondent was with the reply that petitioner had from the very beginning made it clear that respondent was being taken up temporarily, and to work in a vacancy which was reserved for the Backward Classes. She had no right to appointment to a permanent vacancy. The appeal itself was not maintainable as section 9 of the Act provided a right of appeal only against a dismissal, removal, termination or reduction in rank vis-a-vis an employee in a private school. The Tribunal sustained the respondent's claim. Allowing the appeal, it set aside the termination and directed the petitioner to continue respondent in the post she had previously occupied and pay her requisite emoluments to which she was entitled.
3. In this petition, it is contended that the tribunal erred in holding that petitioner was appointed against a permanent vacancy and that she had a right to continue in service. Next, the very appeal she had preferred was not maintainable under section 9. There is no substance in either contention and I dismiss the petition for the reasons given below :---
4. Having regard to the factual position, the main question is whether respondent was appointed to fill in a permanent vacancy ? Section 5 of the Act requires the management to fill in as soon as possible in the manner prescribed, every permanent vacancy in a private school by the appointment of a person duly qualified to fill such vacancy. Respondent was appointed to vacancy created by the exit of Mrs. Kochar. If Mrs. Kochar was in a permanent vacancy and there is no dispute on that aspect of the case her replacement could not be by a probationer in a permanent vacancy, Mr. Vashi, to counter this, refers me to the words used in the notices inviting applications for filling up the post year after year, the appointment letters and the applications submitted by the respondent in response to the notices inviting applications. Whatever words may have been employed by the parties, the matter is governed by the Act and the Rules---the latter being the Maharashtra Employees of Private School (Conditions of Service) Rules 1981. Under Rule 10 of these rules, employees are categorised as under :---
permanent...non-permanent temporary........probationer.
A "temporary employee" has been defined in Rule 10 as one who has been appointed to a temporary vacancy for a fixed period. Can it be said that respondent was appointed to a temporary vacancy ? The answer must be clearly in the negative. The appointment could be temporary in the sense that she was going to be on probation for a certain number of years. That however did not change her status from that of a probationer to a temporary hand. Petitioner, and, on its behalf Mr. Vashi, fairly concede that they have no grievance for against the competence and character of the respondent. In fact, awards were given to the respondent for non competence. Therefore, the limited duration appointments were not because of any deficiency in her performance during the academic sessions 1984-85 and 1985-86. It was referred to Schedule D of the Rules in support of the contention that the orders of appointments were in the form prescribed. That hardly makes any difference, for the courts will treat that as done which was required to be done by the law to be done, irrespective of what in fact was/is shown to have been done. A permanent vacancy having been created, and, there being defect in the capacity and qualifications of respondent, her appointment should have been on probation. That petitioner chose to word the appointment letter differently and that respondent acquiesced in that position does not lead to a different result. At the date the appointment was made, petitioner was under no obligation to conform to the rules requiring appointment of teachers from the recovered categories. The need to conform to the reservations, arose later on and that was because there was an increase in the strength of the staff. This strength went beyond 10 and it was this excess which brought petitioner under the constraint to observe the reservation requirement. Whoever else had to be sent, petitioner could not send out respondent because she had been appointed at a time when the strength was less than 10 and next because she had come in as a probationer vis-a-vis a permanent vacancy. Therefore, on an interpretation of the rules applicable, the grievance made by the respondent was correct and the appeal was rightly allowed."
5. Petitioner's contention that the appeal was not maintainable having regard to the language of section 9 of the Act, is bereft of merit. An employee of a private school who is dismissed, removed or whose services are otherwise terminated or who is reduced in rank, has a right to prefer an appeal. The words "otherwise terminated" are wide enough to include the case of a person like respondent who was not given a renewal for the academic session 1986-87.
6. The result of the foregoing discussion is that the petition fails. In keeping with the order passed by Pendse, J., at the admission stage, petitioner will pay to the respondent entire salary due unto her. Rule discharged with parties being left to bear their own costs. On a request made by petitioner's Counsel, I direct that the operation of the appellate order is stayed for a period of four weeks as from today.