Bombay High Court
Nagpur Shikshan Mandal vs Sau Nanda Wakde Purshottam on 5 May, 2014
Author: R.K. Deshpande
Bench: R.K. Deshpande
1
wp5140.13.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.5140 of 2013
1. Nagpur Shikshan Mandal,
Nagpur, through its Secretary,
Office at Narsingh Cinema,
Pataleshwar Mandir,
Mahal, Nagpur.
2. Smt. Binzani Mahila
Mahavidyalaya, through its
Principal, Office at Mahal,
Nagpur. ... Petitioners
Versus
1. Sau Nanda Wakde Purshottam
Wakde, Aged 45 years,
R/o 25/2, Priyadarshini Flats,
Near RTO Office, Nagpur.
*2. Deputy Director of
Education, Nagpur Division,
Nagpur. ... Respondents
(*Amended as per Hon'ble
Court's Order dated 11-4-2014).
::: Downloaded on - 08/05/2014 23:52:28 :::
2
wp5140.13.odt
Shri S.S. Ghate, Advocate for Petitioners.
Shri P.N. Shende, Advocate for Respondent No.1.
Smt. M.N. Hiwase, AGP for Respondent No.2.
Coram : R.K. Deshpande, J.
Date of Reserving the Judgment : 25-4-2014.
Date of Pronouncing the Judgment : 5-5-2014.
Judgment :
1. Rule. Heard finally by consent of the learned counsels appearing for the parties.
2. The challenge in this petition is to the judgment and order dated 14-8-2013 passed by the School Tribunal, Nagpur, allowing Appeal No.STN/107/2012 filed by the respondent No.1 under Section 9 of the Maharashtra Employees of Private Schools ::: Downloaded on - 08/05/2014 23:52:28 ::: 3 wp5140.13.odt (Conditions of Service) Regulation Act, 1977 ("MEPS Act") challenging her termination from service by an order dated 31-10-2012. The School Tribunal has set aside the order of termination, and the petitioners are directed to reinstate the respondent No.1 in service as Part Time Teacher with continuity.
The relief of full back wages has been denied.
3. The controversy before the School Tribunal was whether the respondent No.1, who was appointed as a Part Time Teacher (subject English) on 29-8-1994, to teach the Junior College classes, acquired the status of a permanent employee, and, therefore, she was entitled to a protection in service, as contemplated under Rule 26 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 ("MEPS Rules") while retrenching her on account of abolition of post by ::: Downloaded on - 08/05/2014 23:52:28 ::: 4 wp5140.13.odt an order dated 31-10-2012 with effect from 1-11-2012. The protection contemplated under Rule 26 is in respect of getting three months' notice of retrenchment, following the principles of seniority in retrenching junior-most employee, obtaining prior approval of the Deputy Director of Education before effecting retrenchment, absorption by the Deputy Director of Education in the alternate employment, and protection of her pay drawn on the date of retrenchment.
4. The School Tribunal has held that the appointment of the respondent No.1 was made by following the procedure prescribed for making an appointment in a clear and permanent vacancy as a Part Time Teacher. The initial appointment was on probation on 29-8-1994 and upon completion of her probation period, she was continued in service till 31-10-2012. The respondent No.1 ::: Downloaded on - 08/05/2014 23:52:28 ::: 5 wp5140.13.odt acquired the status of a deemed confirmed employee. The principle of seniority while effecting retrenchment has not been followed. The termination has, therefore, been set aside.
5. The facts in detail are as under :
The respondent No.1 worked as a Part Time Teacher to teach the subject English to Standards XI and XII of the Junior College run by the petitioner-Society from 1-9-1994 till 1-11-2012, when her services were terminated on the ground of reduction in the strength of the students and classes. The case of the respondent No.1 before the School Tribunal was that she was possessing the qualifications of M.A. (English), M.A. (Economics) and B.Ed., and as such she was fully qualified for being appointed as a Teacher in the subject English to teach the ::: Downloaded on - 08/05/2014 23:52:28 ::: 6 wp5140.13.odt Junior College classes. There was a clear and permanent post of a Part Time Teacher, which was advertised in the local newspaper. The respondent No.1 applied pursuant thereto and was selected, being found most suitable candidate. The appointment of the respondent No.1, by an order dated 29-8-1994, was on probation, which was approved by the Deputy Director of Education by his order dated 6-2-1995. She did not dispute the reduction in the strength of students and classes, but claimed that she was entitled to protection in service in terms of Rule 26 of the MEPS Rules while retrenching her services on account of reduction in the number of classes. It was her case that one post of Full Time Teacher in the subject English fell vacant in the year 2006 because one Mr. M.S. Wankhede from Scheduled Caste category, who used to teach the subject English, left the School. The said post remained unfilled. Thereafter, ::: Downloaded on - 08/05/2014 23:52:28 ::: 7 wp5140.13.odt Mrs. Smita Chawke, Ms Rupa Vyas and Ms Kamini Rajendrakar were appointed in the School. According to the respondent No.1, all these three candidates were junior to her, and hence their services should have been retrenched first.
6. The petitioner-Management denied that the appointment of the respondent No.1 was in a clear and permanent vacancy.
According to the Management, the appointment of the respondent No.1 was in a part time post on temporary basis, which was subject to availability of sufficient workload. According to the Management, the termination was effected on the basis of the communication dated 12-9-2012 issued by the Deputy Director of Education, pointing out that there was no workload for continuing the respondent No.1 in service on part time basis. It is denied that there were other junior persons retained in service. The ::: Downloaded on - 08/05/2014 23:52:28 ::: 8 wp5140.13.odt stand was taken that the appointments of Mrs. Smita Chawke, Ms Rupa Vyas and Ms Kamini Rajendrakar were not in the subject in which the respondent No.1 was employed.
7. The undisputed factual position is that the respondent No.1 possessed the qualifications of M.A. (English), M.A. (Economics) and B.Ed., and was fully qualified for being appointed as a Full Time Teacher in the School on the date of her appointment on 29-8-1994. Her appointment was in the manner prescribed under the Act and the Rules for appointment in a permanent vacancy. There was no dispute about the work, behaviour and performance either during the first two years or even subsequent thereto - till the date of her termination from service. The respondent No.1 was getting salary at the half rate of the salary in the scale of a Full Time Teacher. There existed a ::: Downloaded on - 08/05/2014 23:52:28 ::: 9 wp5140.13.odt Part Time post of a Teacher in the subject English for a period of about 18 years. The controversy is whether the appointment of the respondent No.1 was in a part time permanent vacancy, and whether she acquires a deemed confirmation in service upon satisfactory completion of probation period.
8. The initial order of appointment dated 29-8-1994 appointing the respondent No.1 as a Part Time Teacher in the subject English clearly stipulates that it was made in a clear part time post. The order of appointment stipulates that the employment and the conditions of service shall be governed by the MEPS Act and the Rules made thereunder. The order nowhere stipulates that the appointment was on temporary basis or on probation.
::: Downloaded on - 08/05/2014 23:52:28 ::: 10wp5140.13.odt
9. The School is being run on grant-in-aid basis from the State Government, which are released from the office of the Deputy Director of Education, Nagpur. Therefore, the availability of the workload and fixation of the strength of the employees in the School admissible to grants is done by the Deputy Director of Education. Several orders of staff approval issued by the Deputy Director of Education for the period from 1994 to 2012 indicating the existence and sanction of a post of a Part Time Teacher in the subject English in addition to other full time post of Teacher in the same subject, are placed on record.
The office of the Deputy Director of Education has, therefore, made available the grants for payment of salary of the respondent No.1 at a half rate of regular scale available to the Full Time Teacher.
::: Downloaded on - 08/05/2014 23:52:28 ::: 11wp5140.13.odt
10. There was inconsistency in the instructions issued by the Deputy Director of Education vide his communication dated 12-9-2012, which asked the petitioner-Management to take steps for absorption of the Teachers, who are rendered surplus, in accordance with Rule 26 of the MEPS Rules, whereas the Management, instead of acting on such condition, terminated the services of the respondent No.1 on that ground. A specific question was, therefore, put to the learned counsel for the petitioner-Management as to the basis on which the action of terminating the respondent No.1 was taken contrary to the instructions issued by the Deputy Director of Education. It was informed by him that the Deputy Director of Education had orally informed the Management that Rule 26 of the MEPS Act is not applicable to the Part Time Teachers and hence the question of absorption of the respondent No.1, does not arise.
::: Downloaded on - 08/05/2014 23:52:28 ::: 12wp5140.13.odt
11. This Court, therefore, passed an order on 11-4-2014 as under :
" By communication dated 12.09.2012, the Deputy Director of Education, Nagpur Division had informed to the Principal of the College, run by the petitioner, that two part time teachers, who are the respondent No.1 in both these writ petitions, are rendered surplus, as a result of reduction in strength of school and, therefore, they should be absorbed in accordance with Rule 26 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. It is further stated that if the action is not taken in accordance with this rule, the entire responsibility for payment of salary of these two teachers shall be that of the management.
Shri Ghate, the learned counsel appearing for the petitioner-management in both these petitions, informs that the management was orally instructed by the Deputy Director of Education that the provision of Rule 26 of the M.E.P.S. Rules is not applicable to the part time teachers, as they are not to be treated as permanent teachers. In view of this, the Deputy Director of Education to file an affidavit as to whether oral instructions contrary to the written instructions were issued to the petitioner-management for not absorbing ::: Downloaded on - 08/05/2014 23:52:28 ::: 13 wp5140.13.odt the two employees involved in both the writ petitions. The affidavit be filed on 16.04.2014.
The petitioner-management to place on record list of teachers forwarded along with the communication dated 12.09.2012 by the Deputy Director of Education.
Similarly, the Deputy Director of Education should also place a list forwarded by him along with the said communication to the Principal of the College. The petitioner-management to take instructions as to the steps to be taken in accordance with Rule 26 of the M.E.P.S. Rules for absorption of the respondent No.1-employee, to show their bonafides.
Put up this matter on 16.04.2014.
Steno copy of this order be furnished to the learned A.G.P. to act upon."
In response to the aforesaid order, it is brought to the notice of this Court that only the respondent No.1 and one more part time teacher were rendered surplus in the School and except them, no other Teacher was retrenched in response to the communication dated 12-9-2012 issued by the Deputy Director of Education.
::: Downloaded on - 08/05/2014 23:52:28 ::: 14wp5140.13.odt
12. The Deputy Director of Education has filed an affidavit dated 15-4-2014. Paras 7, 8 and 9 of the said affidavit are reproduced below :
"7. In the foot note No.6 of the staff approval order dated 12.09.2012 it is mentioned that as sufficient workload not available for the permanent teachers, they becomes surplus and hence action of absorption should be undertaken as per rule 26."
"8. It is submitted that as per clause 13 of the Government Letter dated 10th June, 2005 the part time teacher does not possess any status of permanency and also they does not have any right of service protection and other benefits of permanent teachers. It is further submitted that in the recruitment of full time teachers, the school management has to follow the roster and the recruitment procedure as contained in rule 5 of the M.E.P.S. Act 1977, whereas in the recruitment of the part time teachers, the school management does not have to follow the roster and the recruitment procedure as contained in rule 5 of the M.E.P.S. Act 1977."
"9. The instructions contained in the footnote of the ::: Downloaded on - 08/05/2014 23:52:28 ::: 15 wp5140.13.odt staffing pattern dated 12.09.2012 clearly reveals that the instruction issued are informative in nature and not obligatory on the petitioner management. Moreover it is nowhere stated specifically by mentioning names of both the respondents in the said communication dated 12.09.2012 that both the respondents involved in both the petitioners are rendered surplus."
It is the specific stand taken in the affidavit by the Deputy Director of Education that Rule 26 of the MEPS Rules does not apply to a Part Time Teacher, as he does not possess any status of permanency. It is the further stand taken that in the recruitment of Full Time Teachers, the School Management has to follow the roster and recruitment procedure contained in Rule 5 (which should be Section 5) of the MEPS Act, 1977, whereas in the recruitment of the Part Time Teachers, the School Management does not have to follow the roster and the recruitment procedure contained in Rule 5 (Section 5) of the MEPS Act, 1977. It is ::: Downloaded on - 08/05/2014 23:52:28 ::: 16 wp5140.13.odt admitted by the Deputy Director of Education that he had orally instructed the Management that Part Time Teachers have no protection and hence Rule 26 of the MEPS Rules does not apply.
The reliance is placed upon the Government Resolution dated 10-6-2005.
13. In the background of the aforesaid factual position and the rival submissions, the following questions fall for determination of this Court :
(1) Whether an appointment as a Part Time Teacher can be treated as an appointment in a permanent vacancy in terms of sub-section (1) of Section 5 of the MEPS Act?
(2) Whether a Part Time Teacher continued in employment after completion of two years' satisfactory ::: Downloaded on - 08/05/2014 23:52:28 ::: 17 wp5140.13.odt service on probation acquires deemed confirmation in service in terms of sub-section (2) of Section 5 of the MEPS Act?
(3) Whether an appointment of a Part Time Teacher in a permanent part time vacancy can be treated as an appointment on temporary basis?
(4) Whether a Part Time Teacher confirmed in a permanent part time vacancy is entitled to get protection in service in terms of Rule 26(1)(i) of the MEPS Rules upon his retrenchment from service on account of reduction in the number of classes or divisions?
Question No.(1) :
14. Section 5 of the MEPS Act, by an amendment introduced by Section 11 of the Maharashtra Act No.XIV of 2007, is reproduced below :
::: Downloaded on - 08/05/2014 23:52:28 ::: 18wp5140.13.odt "5. Certain obligations of Management of private Schools.
(1) 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:
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 absorption in other 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-
sections (4) and (5), 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 ::: Downloaded on - 08/05/2014 23:52:28 ::: 19 wp5140.13.odt shall be on probation for a period of three years.
(2A) Subject to the provisions of sub-sections (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 behaviour 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.
(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 ::: Downloaded on - 08/05/2014 23:52:28 ::: 20 wp5140.13.odt 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."
By subsequent amendment introduced by the Maharashtra Act No.IX of 2012, brought into force with effect from 14-5-2012, the words "shikshan sevak" in Section 5 were replaced by the words "Assistant Teacher (Probationary)". (For the purposes of convenience, the "Assistant Teacher (Probationary)" shall hereinafter be referred to as the "Shikshan Sevak"). It is subsequent to this amendment that the services of the respondent No.1 were terminated on 31-10-2012.
15. Sub-section (1) of Section 5 of the MEPS Act deals with a permanent vacancy. It states that every permanent vacancy shall be filled in by the appointment of a person duly qualified.
::: Downloaded on - 08/05/2014 23:52:28 ::: 21wp5140.13.odt The principles of interpretation require to gather the intention of Legislature from the language used, which means that attention should be paid to what has been stated and what has not been stated. Nothing can be added or substituted in the language employed. To read "permanent vacancy" as a "permanent full time vacancy" would violate the language by adding the words.
The provision of sub-section (1) of Section 5 does not make any distinction between a part time and a full time permanent vacancy. It cannot, therefore, be read in a restricted sense. There can be a part time appointment in a part time permanent vacancy and a full time appointment in a full time permanent vacancy.
Chapter III in Schedule "B" under the MEPS Rules deals with the qualifications of a Full Time and a Part Time Teachers, which are the same. Thus, it is essential that a Part Time Teacher should also possess the qualifications for being appointed as a Full Time ::: Downloaded on - 08/05/2014 23:52:28 ::: 22 wp5140.13.odt Teacher. There is no basis to hold that an appointment of a Part Time Teacher is not governed by sub-section (1) of Section 5 of the MEPS Act. If there is a permanent vacancy of a Part Time Teacher, then recruitment therein shall be governed by sub-section (1) of Section 5 of the MEPS Act and such appointment can be treated as an appointment in a permanent vacancy. Thus, question No.(1) is answered accordingly.
Question No.(2) :
16. An appointment in a permanent vacancy of a Part Time Teacher or a Full Time Teacher may be made on probation in terms of sub-section (2) of Section 5 of the MEPS Act. If the appointment is as a Teacher other than Shikshan Sevak, it shall, upon continuation in service after satisfactory completion of two years' period of probation, be deemed to have been confirmed. In ::: Downloaded on - 08/05/2014 23:52:28 ::: 23 wp5140.13.odt case of an appointment as a Shikshan Sevak in a permanent vacancy, either as a Full Time Teacher or a Part Time Teacher, it shall be deemed to have been confirmed upon continuation in service, after completion of satisfactory service of three years in terms of sub-section (2A) of Section 5 of the MEPS Act. It cannot, therefore, be said that a Part Time Teacher working in a part time permanent vacancy cannot acquire a deemed confirmation in service. Question No.(2) is, therefore, answered accordingly.
Question No.(3) :
17. Every appointment of a Part Time Teacher cannot be considered to be an appointment on temporary basis. It will depend upon the nature of vacancy available. The appointment of a Part Time Teacher can be treated as on temporary basis only if ::: Downloaded on - 08/05/2014 23:52:28 ::: 24 wp5140.13.odt it is made in a temporary vacancy, as contemplated by sub-section (5) of Section 5 of the MEPS Act. If an appointment as a Part Time Teacher is made in a permanent vacancy, it cannot be treated as an appointment on temporary basis, unless there are other reasons available to treat such appointment as on temporary basis. Question No.(3) is, therefore, answered accordingly.
18. How does a permanent vacancy occurs, is the next question. Rules 4.1 and 4.2 of the Secondary School Code deals with the provisional and permanent recognition. The provisional recognition continues on year-to-year basis for four years subsequent to first-year-recognition. After a period of five years, the School is considered for grant of permanent recognition upon fulfillment of the conditions laid down in Rule 3 of the MEPS Rules. When the recognition is granted on year-to-year basis, the ::: Downloaded on - 08/05/2014 23:52:28 ::: 25 wp5140.13.odt post created and filled in, remains temporary and there is no guarantee of continuation of the post. Hence any vacancy in such post cannot be treated as a permanent vacancy and it will have to be filled in under sub-section (5) of Section 5 on temporary or year-to-year basis. Once the permanent recognition is granted, then the components of full time and/or part time posts in the subjects concerned are fixed and recruitment to all such posts would be governed by sub-section (1) of Section 5 of the MEPS Act.
19. Rule 9 of the MEPS Rules deals with the appointment of staff. Sub-rule (1) therein states that the teaching staff of the School shall be adequate having regard to the number of classes in the School. When a School is being run on grant-in-aid basis, it is the concerned Education Officer of the Zilla Parishad or the ::: Downloaded on - 08/05/2014 23:52:29 ::: 26 wp5140.13.odt Deputy Director of Education of the region, as the case may be, who is competent to decide as to what should be the number of classes in the School and the strength of teaching staff for the purposes of admissibility of grants. This is determined on the basis of the admissions of the students in the School and the norms of workload prescribed under Rule 21 of the MEPS Rules.
Rule 21 deals with the workload for the Full Time Teacher in a School. If half of the workload of a Full Time Teacher is available in the subject, then the post is considered as a part time post of a Teacher in the subject.
20. In the month of August ever year, a staff approval is granted for the previous and next academic sessions, fixing the subject-wise components of Full Time and Part Time Teachers. It is related to the recognition of the School and the sanction of ::: Downloaded on - 08/05/2014 23:52:29 ::: 27 wp5140.13.odt additional classes of various standards. There is no guarantee that the components so fixed on any occasion would be continued forever. It always depends upon the students admitted in the recognized standards and the applicability of the workload norms.
If the components so fixed remain static for a period of five years in the recognized standards, then such components would represent the permanent vacancies, whether of a Full Time Teacher or of a Part Teacher. This is the process by which the full time and part time vacancies of a permanent and temporary nature are created. It, therefore, depends upon the facts and circumstances of each case as to whether a particular post of a Full Time or a Part Time Teacher represents a permanent vacancy.
::: Downloaded on - 08/05/2014 23:52:29 ::: 28wp5140.13.odt Question No.(4) :
21. Once an appointment is made under Section 5 of the MEPS Act, then such appointee becomes an employee within the meaning of sub-section (7) of Section 2 of the MEPS Act, which defines an "Employee" means any member of the teaching and non-teaching staff of a recognised school and includes Shikshan Sevak/Assistant Teacher (Probationary). Sub-section (26) of Section 2 defines a "Teacher" means a member of the teaching staff, which includes the Head of a School. Neither the definition of an "Employee" nor a definition of a "Teacher" admits any distinction between a part time employee and a full time employee. Therefore, it has to be held that the definition of an "Employee" under sub-section (7) and that of a "Teacher" under sub-section (26) of Section 2, include a part time employee/ teacher also.
::: Downloaded on - 08/05/2014 23:52:29 ::: 29wp5140.13.odt
22. The reliance is placed by Shri Ghate for the petitioner-Management on Rule 10 of the MEPS Rules, which reads as under :
"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."
Rule 10 deals with the only two categories of employees - one is permanent and another is non-permanent. The non-permanent employee may either be temporary or on probation, and a temporary employee is one, who is appointed to a temporary vacancy for a fixed period. Rule 10 also does not admit any ::: Downloaded on - 08/05/2014 23:52:29 ::: 30 wp5140.13.odt distinction between a part time permanent employee and a full time permanent employee, and there is no reason to attribute restricted meaning of a full time permanent employee to the categories of employees under the said Rule. To do so would also violate the plain language and would amount to addition of words. The categories of permanent and non-permanent employees under sub-rule (1) of Rule 10 would, therefore, include part time as well as full time employees. Similarly, a temporary employee under sub-rule (2) of Rule 10 shall include part time temporary employee. The provision of Rule 10 does not in any manner advance the case of the Management that it is only a full time employee, who can be treated as a permanent employee, and a part time employee cannot be treated as a permanent employee.
::: Downloaded on - 08/05/2014 23:52:29 ::: 31wp5140.13.odt
23. To deal with question No.(4) regarding applicability of sub-rule (1) of Rule 26 of the MEPS Rules to a part time employee, the said provision need to be seen, and hence it is reproduced below :
"26. Retrenchment on account of abolition of posts.
(1) a permanent employee may be retrenched from service by the Management after giving him 3 months notice, on any of the following grounds, namely-
(i) reduction of establishment owing to reduction in the number of classes or divisions;
(ii) fall in the number of pupils resulting in reduction of establishment;
(iii) Change in the curriculum affecting the number of certain category of employees;
(iv) closure of course of studies;
(v) any other bonafide reason of similar nature."
::: Downloaded on - 08/05/2014 23:52:29 :::
32
wp5140.13.odt
It has already been held that if a Part Time Teacher or a Shikshan Sevak appointed in a part time permanent vacancy is continued in service beyond a period of two or three years, as the case may be, upon satisfactory completion of service as probationer, he acquires a status of a deemed confirmed employee. Such employee needs to be treated as a part time permanent employee.
Such employee is qualified for being appointed as a Full Time Teacher. He is entitled to the pay-scale at half rate of a Full Time Teacher. As per the scheme of Shikshan Sevak, contained in para 9 of the Government Resolution dated 10-6-2005, which is incorporated under Section 5 of the MEPS Act, by way of an amendment in 2012, such a Teacher needs to be absorbed as a Full Time Teacher on availability of such a post in the concerned subject. There is no reason to hold that such a part time employee cannot be treated as a permanent employee under sub-rule (1) of ::: Downloaded on - 08/05/2014 23:52:29 ::: 33 wp5140.13.odt Rule 26 of the MEPS Rules.
24. It is the contention raised that sub-rule (1) of Rule 26 of the MEPS Rules applies only to a Full Time permanent employee. The contention cannot be accepted because it does not exclude a part time permanent employee, as has been done under Rule 19 of the MEPS Rules relating to pension, which uses the words "full time" employee, thereby excluding its applicability to "part time employee", for entitlement to pension.
If the Legislature wanted to deny the benefits of protection under Rule 26 to a Part Time Teacher, then it would have made its intention very clear by using the words full time permanent employee, thereby excluding the applicability of sub-rule (1) of Rule 26 of the MEPS Rules, to part time permanent employee.
To read "permanent employee" as "full time permanent ::: Downloaded on - 08/05/2014 23:52:29 ::: 34 wp5140.13.odt employee" would amount to adding the words to defeat the intention of the Legislature.
25. Sub-rule (9) under Rule 26 throws some light on the intention of the Legislature and hence it is reproduced below :
"26. Retrenchment on account of abolition of posts (9) In case, the fall in the number of pupils, classes or divisions affects the scale of the employee or his status, the facility of absorption admissible as per provisions of clause (iii)of sub-rule (2) shall not be admissible to him and he shall have to on the lower scale or lower post or part-time post as the case may be. In the event of such an employee showing unwillingness to work on such a post, the authorities mentioned in clause (iii) of sub-rule (2) shall permit the Management to retrench him after giving him three months notice or, as the case may be after completion of the notice period if already given."
In terms of the aforesaid provision, even a Full Time Teacher rendered surplus on account of reduction of establishment owing ::: Downloaded on - 08/05/2014 23:52:29 ::: 35 wp5140.13.odt to reduction in the number of classes or division, can be asked to work on a part time post. If such part time employee is again rendered surplus, then he becomes entitled to protection under Rule 26. It is, therefore, held that even a Part Time Teacher confirmed in a permanent vacancy, is entitled to get protection in service in terms of Rule 26(1)(i) of the MEPS Rules, upon retrenchment from service on account of reduction in the number of classes or divisions. Question No.(4) is, therefore, answered accordingly.
26. Coming to the facts of this case, the respondent No.1 was holding the post of Part Time Teacher in English since 29-8-1994. Several orders are placed on record clearly indicating that such post existed for more than eighteen years, i.e. till 31-10-2012. It is not the stand either of the Management or of the ::: Downloaded on - 08/05/2014 23:52:29 ::: 36 wp5140.13.odt Deputy Director of Education that the post held by the respondent No.1 created for the first time during Academic Session 1993-94.
The post may have been in existence prior to that. The appointment of the respondent No.1 was deemed to have been made on probation for a period of two years as Part Time Teacher in the subject English. After satisfactory completion of two years' service on probation, the respondent No.1 is deemed to have acquired a status of a confirmed employee in terms of sub-section (2) of Section 5. The School was receiving the grant-in-aid towards the salary of the respondent No.1 as a Part Time Teacher. Thus, the facts and circumstances of the case clearly indicate that it was a part time permanent vacancy existed in the School, which was occupied by the respondent No.1.
::: Downloaded on - 08/05/2014 23:52:29 ::: 37wp5140.13.odt
27. Sub-section (1) of Section 5 of the MEPS Act requires every permanent vacancy to be filled in the manner prescribed by a duly qualified person. It is not the case of any of the respondents that the proviso under sub-section (1) of Section 5 was attracted in the present case. Sub-rule (3) of Rule 9 of the MEPS Rules states that unless otherwise provided in these rules for every appointment to be made in a school, for a teaching post, the candidates eligible for appointment and desirous of applying for such post shall make an application in writing giving the details as are specified therein.
28. The order of appointment dated 29-8-1994 nowhere states that the appointment of the respondent No.1 has been made on temporary basis. Neither the Management nor the Deputy Director of Education has come forward with a case that the ::: Downloaded on - 08/05/2014 23:52:29 ::: 38 wp5140.13.odt appointment of the respondent No.1 was in a temporary vacancy.
The order of approval to the appointment of the respondent No.1 issued by the Deputy Director of Education also nowhere states that the approval granted is on temporary basis. In view of this, the appointment of the respondent No.1 as a Part Time Teacher cannot be treated as a temporary basis.
29. The respondent No.1 having acquired the status of a part time permanent employee was entitled to protection in service in terms of Rule 26 of the MEPS Rules, since the reduction in the strength of students in the School is not a fact, which is disputed.
In fact, by communication dated 12-9-2012, the Deputy Director of Education directed the Management to take steps in terms of Rule 26 of the MEPS Rules, and it was only the respondent No.1, who was to be retrenched. It is surprising how the Deputy ::: Downloaded on - 08/05/2014 23:52:29 ::: 39 wp5140.13.odt Director of Education has taken a contrary stand in his affidavit dated 15-4-2014, which is also not in conformity with the Government Resolution dated 10-6-2005, referred therein. The protection under Rule 26 is in respect of giving the respondent No.1 three months' notice of retrenchment, following the principle of seniority, obtaining prior approval of the Deputy Director of Education before effecting retrenchment, and absorption of the respondent No.1 in the alternate employment by protecting her pay.
30. The question as to whether the other employees, viz.
Mrs. Smita Chawke, Ms Rupa Vyas and Ms Kamini Rajendrakar were junior to the respondent No.1 in the employment, has not been gone into by the School Tribunal. At any rate, this is the requirement of Rule 26 of the MEPS Rules to follow the principle ::: Downloaded on - 08/05/2014 23:52:29 ::: 40 wp5140.13.odt of seniority. It is, therefore, for the Management and the Deputy Director of Education to decide the seniority and follow the provision of Rule 26 of the MEPS Rules in retrenching the respondent No.1 from service. The provision of Rule 26(2)(iii) of the MEPS Rules prohibits the Management from retrenching the employees, who are rendered surplus, unless there is an order of absorption. In view of this, the School Tribunal did not commit any error in setting aside the termination and directing the respondent No.1 in service. However, the order of the School Tribunal needs to be modified by directing the petitioner-
Management and the respondent No.2-The Deputy Director of Education to follow the provision of Rule 26 of the MEPS Rules and to act accordingly.
31. In the result, this petition is dismissed with direction to ::: Downloaded on - 08/05/2014 23:52:29 ::: 41 wp5140.13.odt the petitioners and the respondent No.2 to follow the provision of Rule 26 of the MEPS Rules, if at all the respondent No.1 is to be retrenched from service. Rule is discharged. No order as to costs.
JUDGE.
pdl ::: Downloaded on - 08/05/2014 23:52:29 :::