Bombay High Court
Shikshan Mandal, Throuhg Its General ... vs Presiding Officer School Tribunal And ... on 13 September, 2000
Equivalent citations: 2001(3)BOMCR558
Author: A.M. Khanwilkar
Bench: A.M. Khanwilkar
JUDGMENT A.M. Khanwilkar, J.
1. This writ petition under Articles 226 and 227 of the Constitution of India is directed against the judgment and order passed by the School Tribunal, Nagpur Division, Nagpur dated July 29, 1986 in Appeal No. STN/34/1985.
Briefly stated, respondent No. 2 was appointed in the educational institution run by the petitioner No. 1 Society, being Civil and Rural Engineering Polytechnic (Pipri), Wardha at Wardha, as Inspector in Surveying. In due course, he was promoted as Lecturer in Civil Engineer, in the year 1972. The post of Head of the Department in Civil Engineering of the said educational institution became vacant in or around the year 1983. The Staff Selection Committee interviewed the prospective candidates, in which respondent No. 2 was selected, for being appointed on the said post. Accordingly, respondent No. 2 came to be appointed as the Head of the Department in Civil Engineering vide appointment letter dated July 14, 1983. In the present case we are concerned with the said appointed of respondent No. 2 as Head of the Department in Civil Engineering. The appointment of respondent No. 2 was on certain conditions. This appointment was purely on temporary basis to be on probation for a period of two years from the date of joining and subject to approval by the Director of Technical Education, M.S. Bombay and the Management Committee of Shikshan Mandal, Wardha. The said appointment letter was issued by the Principal of the said institution. One of the condition in the said letter was that if the respondent No. 2 desired to leave the job in the middle of the session or prior to the last day of his working, he was under an obligation to give one month's notice or to surrender one month's pay. Besides the said condition, condition No. 11 stipulated that if during the probation period the work of respondent No. 2 was not found satisfactory, his services would be discontinued and terminated during the probation period without notice. While respondent No. 2 was undergoing probation period, on November 17, 1983, respondent No. 2 sent a letter to the Principal of the institution informing that he has been considered for being appointed as a Principal at Dhamangaon Polytechnic and would wish to resume the said job at the earliest opportunity. Therefore, request was made in the said letter to the Principal of the petitioner's institution to accord sanction for lien over the post of Head of the Department in Civil Engineering for a period of one year, i.e. from December 19, 1983; and to relieve him on December 18, 1983, so as to enable him to join his new assignment possibly by December 1983. In other words, before the probation period of two years was completed, respondent No. 2 decided to quit the job of Head of the Department of Civil Engineering, albeit, by requesting the management to keep his lien on the said post.
2. On receipt of the said letter, the Principal of the petitioner's institution forwarded the same to the Secretary of the petitioner No. 1 society for enabling the management to take a decision with regard to the request made by respondent No. 2 to keep his lien on the said post of Head of the Department in Civil Engineering. It is relevant to point out that copy of the aforesaid letter dated November 17, 1983 sent by the Principal to the Secretary of the petitioner-society was marked to the respondent No. 2 with an endorsement that the issue of lien will be decided by the society, which is competent authority to sanction lien. On receipt of the said recommendation from the Principal of the educational institution of the petitioner-society, the General Secretary of the petitioner-society, by letter dated November 19, 1983, informed the Principal of the educational institution that the request for lien made by the respondent No. 2 was granted subject to certain conditions. Lien was sanctioned only for a period of six months and that too subject to the approval of Director of Technical Education, M.S., Bombay. The other condition was that after the Director of Technical Education had formally granted approval to the said proposal, the same would be got approved from the Governing Body of the Civil and Rural Engineering, Polytechnic in the next meeting. On receiving the aforesaid communication from the General Secretary, the Principal of the educational institution, by letter dated November 24, 1983, informed the respondent No. 2 that lien has been provisionally granted by the General Secretary of the petitioner-society subject to the above said condition. Copy of the said letter was marked by the Principal to the Director of Technical Education, M.S. Bombay. By a separate letter dated November 24, 1983 the Principal informed the Director of Technical Education that the Society has granted lien to the respondent No. 2 for a period of six months and request was made to grant approval to the said decision. It is not in dispute that no formal response was received from the office of the Director of Technical Education and the said proposal regarding lien remained pending with the said office. On the basis of the provisional approval granted by the General Secretary of the petitioner-society, for lien on the post of Head of the Department in Civil Engineering, respondent No. 2 by a letter dated December 9, 1983, purporting to be an agreement, accepted all the conditions mentioned in the office order of the petitioner-society and also undertook to abide by the rules and regulations. By the said agreement respondent No. 2 accepted the lien of six months subject to approval of the Director of Technical Education and also undertook to attend the institution during the period of lien as and when required by the institution. On executing the said agreement, the Principal issued relieving order on December 9, 1983 in favour of respondent No. 2 and relieved him from the post of Head of the Department of Civil Engineering.
3. Since the lien period was to expire, on completion of six months, respondent No. 2 sent a letter dated May 19, 1984 requesting to extend the lien period for a further period of six months beyond June 9, 1984. Copy of the said letter was submitted by the respondent No. 2 to the Secretary of the petitioner-society. It is not in dispute that the petitioner-society did not extend the lien period before the expiry of six months nor did the respondent No. 2 join duties as Head of the Department of Civil Engineering before the said period. However, it appears that on October 27, 1984 respondent No. 2 gave letter to the Secretary of the Dhamangaon Education Society, where he was working as a Principal of that institution run by the said Society, that he was unable to continue in service and was interested in joining his original post of Head of the Department of Civil Engineering in the institution of the petitioner-society. Copy of the said letter was marked to the Principal of the petitioner-society by the respondent No. 2. In response to the said letter, the Principal of the petitioner-society, by a letter dated November 5, 1984, informed the respondent No. 2 that he was relieved on December 10, 1983 and the lien period has expired on June 9, 1984, however, he failed to join duties on or before that date. Respondent No. 2 on receipt of the said letter from the Principal of the petitioner-institution, made a representation to the Principal vide letter dated November 21, 1984. In the said letter respondent No. 2 unambiguously accepted the fact that he had committed gross mistake in assuming that his lien period was automatically extended. He tendered apology for having failed to join before the expiry of first lien of six months i.e. on or before June 9, 1984 and requested the Principal to condone the mistake committed by him. Copy of the said representation was also marked to the Secretary of the petitioner-society.
4. On the basis of the aforesaid representation, the Secretary of the petitioner-society appears to have taken provisional decision to permit respondent No. 2 to join duties on the post of Head of Department subject to certain conditions. One of the condition was that respondent No. 2 shall execute an agreement before joining duties. Another condition was that respondent No. 2 was allowed to join for the time being entirely at his risk and responsibility, as no approval was accorded by the Director of Technical Education, Bombay or by the Managing Committee of the petitioner-society. The principal of the petitioner-society, in view of the permission granted by the Secretary of the petitioner-society, informed respondent No. 2 that he could join the said post of Head of Department on December 1, 1984 on the conditions stipulated by the Secretary of the petitioner-society. The letter issued by the Principal to the respondent No. 2, dated November 23, 1984, no doubt, observes, that if lien is not approved after the respondent No. 2 had joined the services, in that case lien period will be treated as fresh appointment on the post of Head of the Department, Civil Engineering and the period of lien will be treated as absence from duty. The letter issued by the Principal also observes that respondent No. 2 was being appointed on the post of Head of the Department and his probation period would end in December 1986. On the basis of the said letter respondent No. 2 executed an agreement in favour of the petitioner-society. As per said agreement respondent No. 2 joined his duties as Head of the Department in Civil and Rural Engineering, Polytechnic, Wardha on condition that he had accepted all the conditions prescribed in the letter of the Principal of the petitioner-society dated November 23, 1984. Besides, in the said agreement, respondent No. 2 has unconditionally agreed that he was joining the duties on December 1, 1984 at his risk and responsibility and that any decision taken thereafter by the petitioner-society or by the Managing Committee of the institute or by the Director of Technical Education, M.S. Bombay or any other authority of the institute will be legally binding on him and he would act upon the same without any challenge. On executing the said agreement, respondent No. 2 joined the duties as Head of Department of Civil Engineering on December 1, 1984.
5. The issue regarding sanction of lien of respondent No. 2 came up for consideration before the Governing Body of the Civil and Rural Engineering, Polytechnic, Wardha in its meeting held on March 15, 1985. It is relevant to point out that the Professor G.S. Kadu, who was the Government nominee, representing the Director of Technical Education, was present and participated in the said meeting. He apprised the Governing Body about the policy of the Government with regard to the lien that the Government will not sanction lien to any person joining any non-aided institution. In other words, the Governing Body was told that the Director of Technical Education has not approved the proposal for lien in respect of the said post of respondent No. 2. In the circumstances, the Governing Body resolved that since the Director of Technical Education has not approved sanction to the lien, in was not inclined to approve the said proposal of the respondent No. 2. The Governing Body further resolved that since the post had become vacant, it would be appropriate to advertise the post of Head of Department and fill it up through the Selection Committee.
6. On the basis of the aforesaid decision the Principal of the Civil and Rural Engineering, Polytechnic, Wardha informed respondent No. 2 by letter dated April 12, 1985 that his previous lien from 10-2-1983 or extension application thereafter was not approved by the Governing Body of the institution and as such his services will have to be treated as discontinued from December 10, 1983. Reference has been made by the Principal in the said letter to the agreement executed by the respondent No. 2 on December 9, 1983 and also on December 1, 1984, to remind the respondent No. 2 that he had given assurance that if lien was not approved by any authority, the said decision would be binding on him. Copy of the letter was marked by the Principal to the Director of Technical Education, Bombay as well as the Secretary of the petitioner-society.
7. Notwithstanding the undertaking given by the respondent No. 2 that he would not challenge the decision taken by the authorities and he was joining duties entirely at his risk and responsibility, respondent No. 2 instituted a suit against the petitioner-society and obtained injunction restraining the petitioners from giving effect to the letter issued by the Principal, dated April 12, 1985, which was in the nature of letter of termination. The injunction granted by the Civil Court, however, operated only till May 16, 1985. It is relevant to point out that as per the decision of the Governing Body, the Staff Selection Committee of Civil and Rural Engineering, Polytechnic, Wardha, interviewed the prospective candidates and found that Shri C.R. Deshpande, respondent No. 3 herein, was the most suitable candidate. Since the injunction granted by the Civil Court came to an end on May 16, 1985, the Principal of the petitioner-institution informed respondent No. 2 by a letter dated May 17, 1985, that he was no more entitled to act as Head of the Department and the letter of termination issued on April 12, 1985 had come into effect. Besides that, the Principal appointed respondent No. 3 as per direction of the Staff Selection Committee, as Head of the Department in Civil Engineering, by appointment order dated May 17, 1985. Respondent No. 3 resumed his duties as Head of the Department pursuant to the said appointment order. Even though respondent No. 3 had resumed his duties as Head of the Department, respondent No. 2 kept on insisting that he was still in service and in response to that the Principal of the petitioner-society, by letter dated May 18, 1985, informed respondent No. 2 to desist from moving in the premises of the institution or to enter into any further correspondence, as he was no more in service. Respondent No. 2 thereafter seems to have filed an appeal before the School Tribunal under section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short, 'the Act').
8. As aforesaid, respondent No. 2 in the first place filed a suit in the Civil Court and for the same subject matter filed an appeal before the School Tribunal. In others words, he was pursuing two different remedies before different forums for the same relief.
Another relevant date for completing the narration of facts is that the Director of Technical Education, Professor G.S. Kadu, by letter dated July 3, 1985, informed the Principal, Civil and Rural Engineering, Polytechnic, that neither lien nor reappointment of respondent No. 2 has been approved by the department. No doubt, the said correspondence is with reference to the sanction of salary to be paid to respondent No. 2 as Ex-Head of the Department from 1-2-1984 to 16-5-1985, however, the fact that neither lien nor the reappointment of respondent No. 2 has been approved by the Director of Technical Education was placed on record.
9. The Tribunal examined the matter in the context of the aforesaid facts and by its judgment and order dated July 29, 1986 was pleased to allow the appeal preferred by the respondent No. 2. The Tribunal was pleased to set aside the notice dated April 12, 1985 and May 18, 1985 and instead declared that respondent No. 2 continued to work as the Head of the Department in Civil Engineering/Applied Mechanic of the petitioner's institution. The Tribunal further declared that the period of absence of respondent No. 2 from 10-12-1983 to 31-11-1984 shall be treated as extraordinary leave without pay and for that respondent No. 2 shall submit formal application. With regard to the back wages, the tribunal directed the management to pay the salary as ordered by the Civil Court from 1-12-1984 to 16-5-1985. For arriving at the aforesaid conclusion the Tribunal took a view that even if respondent No. 2 was appointed as Head of the Department, he continued to be permanent/confirmed employee of the petitioner-institution and could not be said to have lost claim over the previous service as a Lecturer in Civil Engineering. The Tribunal further took the view that condition No. 11 in the agreement was contrary to law and that respondent No. 2 could not be removed from service without one month's prior notice. The Tribunal further accepted that there was no provision to keep lien on the post under the Act or the Rules. Further it held that the management ought to have treated the period of absence of respondent No. 2 during the lien period as extraordinary leave. The Tribunal proceeded on the assumption that respondent No. 2 was appointed on a permanent post and, therefore, the termination of respondent No. 2 was illegal. The Tribunal obviously presumed that on completion of probation period respondent No. 2 was automatically confirmed and was, therefore, entitled for a declaration that he was in continuous service as Head of the Department.
10. The management has taken exception to the said order of the Tribunal by this writ petition. Another writ petition has been filed by respondent No. 2 praying for further relief of back wages, being Writ Petition No. 1157 of 1988. Respondent No. 3, who has been appointed as Head of the Department of Civil Engineering, pursuant to the decision taken by the Selection Committee, on the post which had become vacant, has also challenged the decision of the Tribunal by a separate writ petition being W.P. No. 1798 of 1987. All the three writ petitions were heard together.
11. It would be appropriate to first examine the correctness of the decision of the Tribunal which persuaded the Tribunal to pass the order under appeal. If the said order cannot be sustained in law, in that case, no further inquiry would be necessary. In the circumstances, I thought it proper to first pronounce upon the issues in the present Writ Petition No. 1851 of 1986 as the decision in this petition would squarely govern the out come of the other two petitions.
12. Learned Counsel for the petitioner-management, besides challenging the correctness of the decision of the Tribunal on various grounds, has raised preliminary point that the School Tribunal has no jurisdiction to entertain the appeal under section 9 of the Act. According to him, the educational institution run by the petitioner is a polytechnic institution and the same is not covered or amenable to the jurisdiction of the School Tribunal. The said question is no more res integra. The Apex Court in the case of The Chairman, Prince Shivaji Maratha Boarding House and others v. Mr. Sandeep Shivaji Rao Ghatage and others, in Civil Appeal No. 5359 of 1997, by judgment dated August 4, 1997 has answered the said issue against the petitioner. It would be appropriate to reproduce the relevant portion of the judgment of the Apex Court, which reads thus :
"The short question that arises for decision in this appeal is whether the Maharashtra Employees of Private Schools (Condition of Service) Regulation Act, 1977 is applicable to the Teachers of a Polytechnic Institute. The said Act applies to schools and institutions as defined under section 2(24) of the said Act. It appears that section 2(24) of the said Act defines 'Schools" by indicating that the school may be a Primary School, Secondary School or Higher Secondary School or any part of any such school, a Junior college of education or any other institution or part thereof which imparts education or vocational education. In terms of section 2(24) of the said Act, therefore, it is applicable to such institution. Accordingly the impugned decision is not required to be interfered with. The appeal, therefore, fails and is dismissed without any order as to costs."
In the circumstances, the preliminary objection raised on behalf of the petitioner does not merit any further examination and the same is, therefore, rejected.
13. Now coming to the merits of the contentions, Counsel for the petitioners submits that the Tribunal has clearly proceeded on surmises and conjectures in granting relief in favour of respondent No. 2. According to the petitioners, admittedly there was no provision for keeping lien on the post and in any case the management as well as the Director of Technical Education having refused to grant approval to the lien as well as reappointment, it was not open to the Tribunal to grant relief in favour of respondent No. 2, as has been done in the impugned order. The petitioners further contend that the respondent No. 2 was originally appointed in the post of Head of the Department on probation for a period of two years, but before the said period was completed, respondent No. 2 left the job at his own sweet will. It is, therefore, contended that since respondent No. 2 had left the job before the probation period was over, the question of keeping lien over the post does not arise, inasmuch as even assuming that lien could be kept on the said post, but it could be done only if respondent No. 2 was permanent and not on probation. It is next contended that since the management as well as the Director of Technical Education had refused to grant approval, respondent No. 2 cannot get any right in respect of the said post and, therefore, the Tribunal clearly acted in excess of the jurisdiction in granting declaration in favour of respondent No. 2 in the impugned order. It is further contended that at any rate respondent No. 2 had executed an agreement and given unconditional undertaking that he was joining the said post after the lien period entirely at his risk and consequences and that any decision taken by any authority would be binding on him and he would not challenge the same. It is contended that respondent No. 2 was allowed to join the said post only because of the said undertaking and the said appointment cannot enure to the benefit of respondent No. 2 in any manner, especially when the authorities have refused to approve the said reappointment. According to the petitioners, taking any view of the matter, it was not open to the Tribunal to allow the appeal and grant relief, as has been done in the impugned order. Counsel for the petitioners criticized the reasoning adopted by the Tribunal which was the justification for granting relief in favour of the respondent No. 2.
14. Learned Counsel for the respondent No. 2 on the other hand fully supported the reasoning given by the Tribunal. According to the respondent No. 2, no doubt, there was no provisions for granting lien on the said post, but since the General Secretary of the petitioner-society had granted lien originally for a period of six months and since no communication was received from the office of the Director of Technical Education, M.S., Bombay, before the expiry of the said six months, it should be presumed that sanction for lien was accorded by the said authority. It is further contended that before the expiry of six months responded No. 2 had made a request for extension of lien period and neither the management nor the office of the Director of Technical Education responded to the said request and, therefore, it should be presumed that the authorities had granted sanction to the extension of lien over the said post. It is, therefore, contended that the appointment of respondent No. 2 by letter dated November 23, 1984, was in continuation of the original appointment, except that the lien period was to be treated as absence from duty. In other words, it is contended that the original appointment of respondent No. 2 was revived and only the probation period was extended till December 1986. Relying on the said letter dated November 23, 1984, it is contended, that at any rate the petitioners were under an obligation to treat the appointment of respondent No. 2 as a fresh appointment on the post of Head of the Department, Civil Engineering, with effect from November 23, 1984. In the circumstances, it is contended that the order under challenge does not need interference, but the respondent No. 2 is entitled for further relief of back wages.
15. Having considered the rival submissions, I find that the Tribunal has completely misdirected itself in proceeding on the assumption, as reflected in para 6 of the impugned judgment, that even though respondent No. 2 was appointed as Head of the Department, that did not wipe out the past service of respondent No. 2 as a Lecturer in Civil Engineering, which was permanent and confirmed. The said observation is totally unsustainable as there is no such provision either in the Act or the Rules or in the contract or service conditions which were for the time being in force, that would entitle the respondent No. 2 to set up the said plea. Moreover, from the pleadings I find that no such plea was raised on behalf of the respondent No. 2. On the other hand, it would be seen that the appointment of respondent No. 2 on the post of Head of the Department was a fresh appointment and de horse the service rendered by him as a Lecturer in Civil Engineering. It was a fresh appointment and the respondent No. 2 accepted the said appointment without any pre-condition. In the circumstances, the Tribunal was wrong in observing that respondent No. 2 continued to be as permanent and confirmed employee of the petitioner's institution. The illustration given by the tribunal in support of the said conclusion is wholly misplaced. As observed above, neither the Act nor the Rules make such a provision nor there was any agreement between the parties in that behalf. If this foundation, on the basis of which the Tribunal proceeded, is reversed, as a natural corollary the final relief which has been granted by the Tribunal would be without any basis.
Besides, the Tribunal in para 7 of the judgment has observed that condition No. 11 in the agreement, that the services would be terminated without notice, was not according to law. In my view, the said aspect was wholly irrelevant in the facts of the present case. It is seen that in the present case it is the respondent No. 2, who had voluntarily approached the Principal of the petitioner-institution to relieve him from service to enable him to take up the job of Principal at Dhamangaon Polytechnic. It is pursuant to the said request made by the respondent No. 2 that he was relieved. Moreover, his request for sanction of lien was provisionally granted subject to final approval by the management as well as the Director of Technical Education. It is not in dispute that eventually the Director of Technical Education declined to grant approval having regard to the Government policy and, therefore, the legal consequence was that there was no lien of respondent No. 2 on the said post. Any arrangement made between respondent No. 2 and the petitioner-institution was only provisional arrangement subject to approval by the authorities as per law. As observed above, in the present case the petitioners did not remove respondent No. 2 but it is the respondent No. 2 who voluntarily opted to leave service during probation period and as such the basis on which the tribunal proceeded with regard to condition No. 11 in the agreement, is totally misconceived and misdirected.
Besides this, what is relevant to note is that, admittedly, there is no provision either in the Act or the Rules to keep lien over the said post during the probation period. Learned Counsel for the petitioners has rightly relied upon the decision of the Apex Court reported in Triveni Shankar Saxena v. State of U.P., , to contend that lien can be only when the incumbent is appointed on permanent basis and not during the probation. In the present case, it is not in dispute that there is no provision for lien; and since respondent No. 2 was admittedly a probationer at the relevant time, question of exercise of lien would not arise in view of the decision of the Apex Court referred to above. Nevertheless the Tribunal proceeded on the basis that the management should have treated absence of respondent No. 2 during the lien period and ought to have granted extraordinary leave. In my view, the conclusion reached at by the Tribunal that the termination order issued against respondent No. 2 was illegal, is totally misconceived and unsustainable in law.
16. On careful examination of all the relevant facts and the legal position, it would appear that the original appointment of respondent No. 2 was on probation for a period of two years. Before expiry of the said period, respondent No. 2, on his own volition, requested the petitioners to relieve him from the said assignment, so as to enable him to join some other institution on the post of Principal. No doubt, respondent No. 2 requested to keep lien over the post of Head of the Department of Civil Engineering. The said request was examined by the Principal as well as the General Secretary of the petitioner-institution, who accepted the proposal of keeping lien subject to sanction to be accorded by the Director of Technical Education and the Management of the Society. It is not in dispute that there is no provision either in the Act or the Rules which would entitle the respondent No. 2 to keep lien over the said post. As observed above, assuming that such a provision was available, even then since respondent No. 2 was a probationer, he was not entitled to keep lien over the said post in view of the decision of the Apex Court. Since there was no provision to keep lien, it was wholly unnecessary for the petitioners to recommend the proposal to the Director of Technical Education. The fact whether the director of Technical Education accorded approval or not is wholly irrelevant. In any case at a latter stage the Director of Technical Education has clarified that no such approval would be granted in view of the Government Policy. It is not in dispute that the issue of sanction of lien came up for consideration before the Governing Body which was attended by Shri G.S. Kadu, Director of Technical Education and he had apprised the Governing Body that the proposal to sanction lien could not be accepted by his office. Besides this, there is no dispute that respondent No. 2 failed to join the duties within the lien period of six months prior to June 9, 1984. Merely because respondent No. 2 had sent a letter prior to the expiry of the said period for extension of lien period, would not automatically entitle the respondent No. 2 to contend that lien period was duly extended. As a matter of fact, respondent No. 2 has unconditionally accepted his lapse in the letter written to the Principal, dated November 21, 1984, that he had committed mistake in not joining before the lien period had expired. Merely because the Principal showed indulgence on the basis of the instructions from the Secretary of the petitioner-society to the respondent No. 2 and permitted him to join duties, would not entitle the respondent No. 2 to stake claim with regard to the said post as of right. Respondent No. 2 was allowed to join on a clear understanding that he was joining entirely at his risk and responsibility and that any decision taken by the management or the appropriate authority would be binding on him and he would not challenge the same. Respondent No. 2 gave unconditional undertaking and executed agreement for having accepted the said terms. After having done so, it was not open for respondent No. 2 to litigate over the matter. Respondent No. 2 not only filed the present appeal but also filed civil suit for the same cause of action. He pursued two different remedies before two different forums for the same relief, simultaneously. Merely because the letter dated November 23,1984 mention that if the authorities do not accord approval with regard to the proposal of lien, in that case it would be treated as appointment in the post of Head of the Department and lien period would be treated as absence from duties, that by itself would not give any right to respondent No. 2, for the simple reason that the Governing Body, which is the final decision taking body of the management, by a resolution dated March 15,1985, resolved not only not to approve the proposal of lien but also with regard to the reappointment of the respondent No. 2. This is so, because once the proposal for lien is rejected, the legal consequence would be that the post which was held by respondent No. 2, had become vacant; and as per rules, all vacant posts are to be filled in as per the recommendation of the Selection Committee only. In the circumstances, respondent No. 2 was not entitled to be appointed without following the due process of law. It is a matter of record that the management followed due procedure and the Selection Committee invited prospective candidates for interview and selected respondent No. 3 as the most suitable candidate in preference to others, which is in accordance with law. Respondent No. 2 cannot march over the respondent No. 3 because of the observation made in the letter dated November 23,1984, which was issued only by the principal of the institution. The appointing authority is the management and not the Principal. In any case, there is no dispute that the appointment, pursuant to the letter dated November 23,1984, was subject to the mandatory provisions of law. This appointment at best can be said to be ad hoc appointment of respondent No. 2 inasmuch as, as aforesaid, since respondent No. 2 had voluntarily relieved himself from the job, the post which he was holding had become vacant and the same could be filled in only by due process of law namely on the basis of recommendation of the Selection Committee. In the circumstances, the remarks in the said letter which are strongly relied upon by respondent No. 2, would be of no avail, as, in law, he had no right whatsoever on the said post. Besides the above said legal position, the respondent No. 2 had given an unconditional undertaking and it was, therefore, not open for him to approbate and reprobate on the said issue by taking advantage of some observations in the letters issued by the Principal of the petitioner-institution. In the circumstances, the respondent No. 2 cannot get benefit, much less a declaration that he was permanent and confirmed employee of the petitioners and was entitled for a declaration, as has been done by the Tribunal in the impugned order. In my view, the Tribunal has completely misdirected itself in not considering the aforesaid relevant aspects of the matter. Taking totality of the circumstances into account, it will have to be concluded that the lien was not permissible in law mainly because no such provision is made in the Act and the Rules, contract or service conditions for the time being in force. Moreover, it is well settled that a probationer cannot keep lien over the post, but a person can be said to acquire lien on a post only when he has been confirmed and made permanent on that post and not earlier. This view has been taken by the Apex Court as early as in Parshotam Lal Dhingra v. Union of India, which has been reiterated by the Apex Court in Triveni Shankar Saxen's case (cited supra). Once it is held that respondent No. 2 was not entitled to acquire lien on the said post and at any rate the authorities having refused approval for the lien, legal consequences are that the post had become vacant, which could be filled in only as per procedure provided for by the Rules. The reliance placed by the learned Counsel for respondent No. 2 on the decision of Punjab and Harayana High Court reported in Sh. S.P. Didi District Food and Supplies Controller, Punjab v. State of Punjab and another, 1988(1) S.L.R. 429 is totally misplaced. However, it would be relevant to refer to the observations made in the said judgment, which apply to the case of respondent No. 2. The same read thus :
"To some extent the petitioner is the author of his own misfortune because he kept changing his mind and fell between two stools."
The aforesaid observations aptly apply to the case of respondent No. 2 inasmuch as, before the expiry of probation period, respondent No. 2 voluntarily left the service so as to join as Principal of some other institution. Although the Principal had granted lien on the said post, initially for a period of six months, respondent No. 2 did not return back during the said period and lost the opportunity of continuing in service, if any. Later on, for reasons best known to respondent No. 2, he left the job of Principal of Dhamangaon Education Society and desired to join the petitioner's institution. No doubt, respondent No. 2 has been victim of circumstances but the matter cannot be decided on that basis. On applying the legal position it is not possible to extend any benefit to the respondent No. 2. The contention raised on behalf of the respondent No. 2 that the petitioners are estopped from resiling from the offer that the appointment of respondent No. 2 would be treated as fresh appointment on the post of Head of the Department and the lien period would be treated as absence from duty; however, it is not possible to accept the said contention. In my view, no case of estoppel has been pleaded or established by respondent No. 2. In any case, it is not open to respondent No. 2 to raise such a plea which would tantamount to pleading estoppel against the law. As observed above, the authorities have acted on the basis of legal position that would emerge by discontinuing the services of respondent No. 2. Taking any view of the matter, respondent No. 2 cannot be said to be entitled for any relief whatsoever and no infirmity can be pointed out in the final decision taken by the management. In my view, the said decision has rightly been taken by giving effect to the legal requirements. In the circumstances, the impugned judgment and order passed by the Tribunal deserves to be set aside being unsustainable both on facts and in law.
17. Respondent No. 2 had filed civil application to place on record subsequent developments pertaining to the irreparable loss suffered by him since the said subsequent events have no bearing on the merits of the contentions, I am not inclined to even advert to the same in the present judgment. In view of the aforesaid facts and conclusion reached, it is not necessary to examine the other questions regarding back wages and consequential reliefs.
18. For the aforesaid reasons this writ petition is allowed. The impugned judgment and order passed the School Tribunal, Nagpur dated July 29, 1986 in Appeal No. STN/34/1985 is set aside. Rule made absolute on the above terms. No order as to costs.