Bombay High Court
Ku. Aruna D/O Domaji Shinde vs Priyadarshini Shikshan Prasarak ... on 4 October, 2018
Author: Rohit B. Deo
Bench: Rohit B. Deo
1 wp4959of2009
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION 4959 OF 2009
Ku. Aruna d/o. Domaji Shinde,
R/o. Behind Pawansut Dawa Bazar,
Civil Ward No. 51, Chandrapur ...PETITIONER
...V E R S U S...
1 Priyadarshini Shikshan Prasarak Mandal,
President, Shri Nilkanth Baburao Bujade,
Behind Govt. D.Ed. College,
Near Budha Vihar, Babupeth, Chandrapur
2 Mahatma Jyotiba Phule Prathamik School,
Shyamnagar, Bengali Camp, Chandrapur,
through its Headmaster
3 The Education Officer (Primary),
Zilla Parishad, Chandrapur ...RESPONDENTS
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Shri P.N. Shende, counsel for petitioner.
None for respondents.
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CORAM
:ROHIT B. DEO, J.
DATE
:4 th
OCTOBER, 2018.
ORAL JUDGMENT
Heard Shri P.N. Shende, the learned counsel for the petitioner. None appears on behalf of respondents. 2 Perusal of orders dated 19.9.2013, 19.6.2017 and 25.7.2017 reveal that the learned counsel for the respondents ::: Uploaded on - 06/10/2018 ::: Downloaded on - 07/10/2018 01:15:19 ::: 2 wp4959of2009 persistently remained absent. In this view of the matter, the petition is finally heard although the respondents are not represented. 3 The challenge is to the judgment and order dated 31.3.2009 by and under which the School Tribunal, Chandrapur ("Tribunal") dismissed appeal STC/21/2005 preferred by the petitioner - teacher challenging her termination w.e.f. 20.8.2003. Perusal of the termination order dated 20.8.2003 shows that the termination is clearly punitive and it is irrefutable that the teacher is neither given an opportunity to show cause nor is there compliance with the provisions of the Maharashtra Employees of Private Schools (Condition of Service) Regulation Act, 1977 and the Rules framed thereunder. The Tribunal has, however, not dealt with the termination on merits in view of the finding recorded on preliminary issue - 2 which is whether the appointment of the teacher was in accordance with section 5 of the Act and the Rules framed thereunder.
4 The relevant facts are thus:
The petitioner contends that she was appointed as a Assistant Teacher on 1.7.1996 on two years probation by appointment order issued by the ex-officio secretary of the School Committee, in clear ::: Uploaded on - 06/10/2018 ::: Downloaded on - 07/10/2018 01:15:19 ::: 3 wp4959of2009 and permanent vacancy reserved for the scheduled caste and continuously served till her termination.
5 The petitioner contended before the Tribunal that upon completion of probation, she was issued continuation order for the period 1.7.1998 to 1.7.2000 and thereafter for the period from 1.7.2000 till further orders. The petitioner was appointed as in- charge Head Mistress from 1.7.2000 to 1.7.2000 and was continued as such till further orders by order dated 10.7.2002. 6 The petitioner avers in the memo of appeal that after the school was admitted to grants, the management forwarded proposal for approval to the Education Officer who approved the appointment of the petitioner on probation from 1.7.1998 for two years and further approved the continuation from 1.7.2000 till further orders, by approval order dated 6.3.2002.
7 The contention of the petitioner is that she was a permanent employee and could not have been terminated abruptly much less without complying with the mandatory provisions of the Act and the Rules framed thereunder.
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4 wp4959of2009 8 The management sought dismissal of the appeal interalia contending that the appointment of the petitioner was not in accordance with section 5 of the Act read with Rule 9(2) of the Rules. The management specifically contended that the Secretary of the School Committee did not issue the appointment order nor did the School Committee resolve to appoint the petitioner. The management further contended that the petitioner was age barred as on the date of her appointment and further that since no advertisement was issued, the appointment of the petitioner is contrary to the Rules, and therefore, illegal. 9 Pertinently, in response to paragraph 1 of the memo of appeal, the management admitted that the petitioner was appointed by order dated 22.6.1996 and was continued till 20.8.2003. This admission is qualified by the assertion that the petitioner was appointed on temporary basis and that the appointment was illegal. 10 The Tribunal framed the following preliminary issues and answered them by the order impugned.
1. Whether the school was a recognized school as defined under the MEPS Act?
2. Whether the appointment of the appellant was made as per section - 5 of the MEPS Act and the Rules thereunder? ::: Uploaded on - 06/10/2018 ::: Downloaded on - 07/10/2018 01:15:19 ::: 5 wp4959of2009
3. Whether such an appointment has been approved by the Education Officer in pursuance of the provisions of the Act as well as Rules framed thereunder including Govt. Resolution issued from time to time regarding reservations, etc?
The preliminary issue 1 was answered in the affirmative and preliminary issue 2 was answered in the negative. 11 Perusal of the order impugned would reveal that the Tribunal has held that since the petitioner did not place on record the advertisement, the appointment falls foul of Rule 9(8) of the Rules. Be it noted that in the memo of appeal, the petitioner specifically averred that the advertisement was published in the daily newspaper Mahavidarbha, which averment is noted by the Tribunal. In so far as the said finding is concerned, Shri P.N. Shende, the learned counsel for the petitioner would submit that in view of the specific averment in the memo of appeal that an advertisement was duly published in the daily newspaper Mahavidarbha, the burden to prove the contrary lay on the management. Shri P.N. Shende, the learned counsel has invited my attention to a copy of the advertisement published in the daily newspaper Mahavidarbha on 13.2.1997. Shri P.N. Shende, the learned counsel would further submit that the Education Officer has granted the approval after satisfying himself that the requisite formalities including publication of advertisement are duly complied ::: Uploaded on - 06/10/2018 ::: Downloaded on - 07/10/2018 01:15:19 ::: 6 wp4959of2009 with. It appears that the Education Officer has neither appeared before the Tribunal nor before this Court with the result that the stand of the Education Officer is not on record. 12 The other reason recorded by the Tribunal for holding that the appointment of the petitioner was not in accordance with section 5 of the Act read with Rule 9(2) is that the appointment orders are issued by the secretary of the institution and not by the secretary of the School Committee. Perusal of the approval order dated 11.4.2000 (Annexure-IV) would reveal that the Education Officer (Primary), Zilla Parishad, Nagpur has referred to the resolution of the School Committee dated 30.5.1997. The approval order dated 6.3.2002 issued by the same authority makes a reference to resolution 3 of the management dated 24.9.2000. At this stage, it would be apposite to note the enunciation of law by the Division Bench of this Court in Gajanan Uddhaorao Garole..vs.. State of Maharashtra & Ors reported in 2009(5)Mh.L.J.300 and in particular the observations in paragraph 3 which read thus:-
"3. Shri Patil, learned counsel for the appellant submits that the appointment could not have been held to be bad on the ground that the appointment order was not signed by the Head Master, as it was signed by the Secretary of the Management and was in substance the order by the management. He places reliance upon Section 5 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. Section 5 of the Act, ::: Uploaded on - 06/10/2018 ::: Downloaded on - 07/10/2018 01:15:19 ::: 7 wp4959of2009 insofar as it is relevant reads as follows :
"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, vocation, 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."
It is obvious from the above Section 5 that the duty and power to make appointments is vested in the management. In this case, there is a resolution of the management deciding to appoint the appellant. In pursuance of such a resolution and in exercise of power vested under Section 5, the appellant ought to have been appointed in accordance with Rule 9 of Maharashtra Employees of Private Schools (Conditions of Service) Rules, which contemplates that the appointment order should be signed by the Head Master in the Form in Schedule D. However, that was not done. We do not find any illegality of such a grave nature in the appointment order, which is signed by the Secretary of the Management, so as to treat the appointment itself as invalid on this count. There is a resolution of the management for an appointment of the appellant and the appointment order was signed by the Secretary. The appointment must be treated as valid particularly since it has been acted upon. Having regard to the provisions of Section 5 read with Rule 9, it cannot be said that the appointment was void or illegal. In any event permitting ::: Uploaded on - 06/10/2018 ::: Downloaded on - 07/10/2018 01:15:19 ::: 8 wp4959of2009 the management to describe the appointment order as illegal and allowing it to terminate the services of the appellant would amount to permitting the management to take advantage of its own wrong."
Perusal of the order impugned would reveal that the Tribunal has not considered the approval orders which refer to the resolution of the School Committee and resolution 3 of the Management and the effect and implication of the said resolution on preliminary issue 2 which is whether the appointment is in accordance with section 5 of the Act and the Rules framed thereunder. In view of the course which is proposed to be adopted, it would not be appropriate to make any emphatic observation on the said preliminary issue. Suffice it to observe that the mere fact that the order is not signed or issued by the ex-officio secretary of the School Committee, may not necessary render the appointment illegal much less void. 13 Unfortunately, the Tribunal has decided only the preliminary issues and the appeal is dismissed without recording findings on the other contentions raised by the petitioner. Such a course could have been avoided. Invariably, the consequence is multiplicity of litigations if on judicial review the findings recorded on preliminary issues are found to be erroneous. A Division Bench of this Court in Sadhana Janardhan Jadhav..vs.. Pratibha Patil Mahila Mahamandal and others reported in 2013(2) Mh.L.J.484 ::: Uploaded on - 06/10/2018 ::: Downloaded on - 07/10/2018 01:15:19 ::: 9 wp4959of2009 has observed thus:
"15) The issue regarding validity of appointment as per Section 5 of the MEPS Act and the Rules thereunder, was not thus touched by the Full Bench. Catching the said string from the said Para 15 of the judgment in the case of Anna Pethe, it is found by this Court that, old habit of the management to raise a preliminary issue and get the appeal decided only on the preliminary issue, has again surfaced, resulting into multiplicity of litigation.
16) In cases where employees of private school have been terminated after holding departmental enquiry or otherwise, when such employees have become permanent in service or have completed requisite number of years of service, the said issue regarding appointment is being casually raised by the management and framed by the Tribunal. It has been found that large number of appeals have been dismissed by the Tribunals on the said preliminary issue when the same was not at all justified and this Court was required to send back the appeals for decision on merits. Thus, the school Tribunals have been adopting a short-cut method of dismissing the appeals on the ground that the appointment was not made as per Section 5 of the MEPS Act and the Rules, to earn disposal of cases at their credit, which not only causes serious injustice to the litigating parties but give rise to multiplicity of litigations between the parties. A learned Single Judge of this Court in the case of Manohar Mahadeo Bhajikhaye Vs. Presiding Officer, School Tribunal, Chandrapur and Ors. -
2011 (4) Mh.L.J. 312, also faced the similar situation. The case at hand is of similar nature.
17) In the instant case, the only defence of the management in the written statement was, that the Education officer did not grant approval to the appointment of the appellant in the school because she was M.A.B.Ed. and not D.Ed. That was also the case of the Education officer. It was neither the case of the management and Respondent No.4 nor the Education Officer, who were the only contesting respondents before the School Tribunal, that the appointment of the appellant was bad for want of advertisement before making her appointment. However, the Tribunal recorded a finding that the appellant did not produce advertisement to show that her appointment was made after publication of advertisement and thus did not ::: Uploaded on - 06/10/2018 ::: Downloaded on - 07/10/2018 01:15:19 ::: 10 wp4959of2009 discharge the initial burden of proof and held that her appointment was not in accordance with Section 5 of the MEPS Act and dismissed the appeal.
18) We thus find as revealed in the facts of this case that, the approach of the Tribunals in framing the preliminary issue as to whether appointment was as per Section 5 of the MEPS Act and the Rules and dismissing the same only on that ground by relying on Para 15 of the judgment in Anna Pethe's case, is unwarranted. The observations in Para 15 of the Judgment in Anna Pethe's case, therefore, will have to be read in the context of law laid down by the Apex Court right from the year 1975, which went unnoticed in the case of Anna Pethe. We, quote the following paragraphs from the judgment of the Hon'ble Apex Court in the case of National Council for Cement Vs. State of Haryana - (1996) 3 SCC 206, as under :
"12. We, however, cannot shut our eyes to the appalling situation created by such preliminary issues which take long years to settle as the decision of the Tribunal on the preliminary issue is immediately challenged in one or the other forum including the High Court and proceedings in the reference are stayed which continue to lie dormant till, the matter relating to the preliminary issue is finally disposed of.
13. This Court in Cooper Engineering Ltd. v. P.P.Mundhe - (1975)2 SCC 661) in order to obviate undue delay in the adjudication of the real dispute, observed that the Industrial Tribunals should decide the preliminary issues as also the main issues on merits all together so that there may not be any further litigation at the interlocutory stage. It was further observed that there was no justification for a party to the proceedings to stall the final adjudication of the dispute referred to the Tribunal by questioning the decision of the Tribunal on the preliminary issue before the High Court.
14. Again in S.K.Verma v. Mahesh Chandra - (1983)4 SCC 214) this Court strongly disapproved the practice of raising frivolous preliminary objections at the instance of the employer to delay and defeat the purpose of adjudication on merits.::: Uploaded on - 06/10/2018 ::: Downloaded on - 07/10/2018 01:15:19 :::
11 wp4959of2009 In D.P.Maheshwari v. Delhi Administration and Ors.- (1983) 4 SCC 293 the Supreme Court observed thus in the following extracted portion of para 1, "1...There was a time when it was thought prudent and wise policy to decide preliminary issues first. But the time appears to have arrived for a reversal of that policy. We think it is better that tribunals, particularly those entrusted with the task of adjudicating labour disputes where delay may lead to misery and jeopardise industrial peace, should decide all issues in dispute at the same time without trying some of them as preliminary issues..."
"....Tribunals and courts who are requested to decide preliminary questions must therefore ask themselves whether such threshold part- adjudication is really necessary and whether it will not lead to other woeful consequences. After all tribunals like industrial tribunals are constituted to decide expeditiously special kinds of disputes and their jurisdiction to so decide is not to be stifled by all manner of preliminary objections and journeyings up and down."
19) We do not find any reason why the same tenet of law enunciated by the Supreme Court in case of labour disputes majority of which are `service matters' should also not apply in relation to `service-matters' of all employees of private schools who institute appeals before the specially created `School Tribunal' under MEPS Act, 1977 . We, therefore, hold in the light of the law laid down by the Apex Court that the preliminary issue as to whether the appointment of the appellant is made in accordance with Section 5 of the MEPS Act and the Rules there under, should not be framed mechanically in the first place and should be framed only if it arises and is properly substantiated in the pleadings of the parties to the appeal and further at that the School Tribunal should decide all the issues at the same time without trying any or some of them as preliminary issues.
14 In the light of the discussion supra, the order impugned is liable to be set aside.
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12 wp4959of2009 15 The matter is remitted to the School Tribunal for deciding all issues including preliminary issues together, after giving opportunity to the contesting parties to place on record such additional material and to lead such evidence as the contesting parties may deem fit. The Tribunal shall dispose of the appeal finally within four months.
16 Rule is made absolute in the aforestated terms.
JUDGE RSB ::: Uploaded on - 06/10/2018 ::: Downloaded on - 07/10/2018 01:15:19 :::