Bombay High Court
Khursid Anwar Noor Mohammad vs The Presiding Officer, School Tribunal ... on 26 July, 2019
Author: A.S.Chandurkar
Bench: A.S.Chandurkar
1 WP4079.08(j)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.4079 OF 2008
Khursid Anwar Noor Mohammad,
Occupation : Nil.
R/o. Killa Masjid, Juni Basti,
Murtizapur, Tah. Murtizapur, District Akola.
. ...... PETITIONER
...V E R S U S...
1] The Presiding Officer,
School Tribunal, Amravati Division,
Amravati.
2] The Public Education Society,
Murtizapur, Tahsil Murtizapur,
District Akola, through its Secretary,
Murtizapur, District Akola.
3] The Headmistress,
National Urdu High School,
Sonori, Tahsil Murtizapur, District Akola.
4] The Education Officer (Secondary),
Zilla Parishad, Akola.
. .....RESPONDENTS
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Shri Rashid A.Haque, Advocate for petitioner.
Shri C.A.Joshi, Advocate for respondent nos. 2 and 3.
Shri V.A.Thakre, Assistant Government Pleader for respondent no. 4.
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CORAM : A.S.CHANDURKAR, J.
DATED : 26.07.2019
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2 WP4079.08(j)
ORAL JUDGMENT
The challenge raised in the present writ petition is to the judgment of the School Tribunal dated 22.07.2008 in the appeal filed by the petitioner under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short, 'the said Act'). By that judgment the appeal preferred by the petitioner seeking to challenge the order of termination dated 29.03.2007 has been dismissed.
2. In the appeal preferred by the petitioner, it is his case that the respondent no.3-School was recognized by the State Government in the year 2000-01. In the year 2003 an advertisement was published inviting applications to fill up various posts in the said School. In response thereto, the petitioner had made an application and after considering the same, he came to be appointed on 20.06.2003. It is further pleaded that the original order of appointment was taken away from the petitioner with a view to obtain approval and thereafter the same was not returned. The petitioner continued in employment. In the year 2005, the Management sent a proposal in respect of approval of services of employees appointed on various posts. An approval order dated 31.03.2006 was accordingly issued. Insofar as the petitioner is concerned, it was stated that his services were approved from 01.07.2005. It is then stated that on 05.01.2007 the petitioner was prevented from discharging his duties. Similarly on two occasions thereafter he was ::: Uploaded on - 01/08/2019 ::: Downloaded on - 15/04/2020 13:31:05 ::: 3 WP4079.08(j) again restrained from discharging his duties. Hence on 12.03.2007 the petitioner issued a legal notice to the Management raising various grievances therein. On 29.03.2007, the Management issued an order of terminating the services of the petitioner. Being aggrieved the petitioner filed the aforesaid appeal raising the ground that as he had been appointed on 20.06.2003, he had attained the status of deemed confirmed employee and without conducting any enquiry his services could not have been terminated. The petitioner therefore sought reinstatement with continuity in service.
3. Reply was filed on behalf of the Management denying the averments as made in the memorandum of appeal. According to the Management, the petitioner came to be appointed on 19.06.2005 and not in the year 2003. The documents sought to be relied upon by the petitioner indicating his appointment in the year 2003 were denied as being fabricated. It was further pleaded that pursuant to the legal notice issued to the Management on 12.03.2007 a reply was given on 20.03.2007 which was refused by the petitioner. It was then pleaded that the services of the petitioner were terminated prior to completion of the period of probation as his services were not satisfactory. It was thus submitted that the petitioner was not entitled for the relief of reinstatement as prayed. The learned Member of the School Tribunal considered the rival submissions and after applying its mind to the documents on record came to the conclusion that the ::: Uploaded on - 01/08/2019 ::: Downloaded on - 15/04/2020 13:31:05 ::: 4 WP4079.08(j) petitioner was appointed as an Assistant Teacher with effect from 20.06.2005. It was further held that his services were approved from 01.07.2005 onwards. As the services of the petitioner were terminated during the period of probation on the ground that the same were not satisfactory, it was held that the petitioner was not entitled to the relief of reinstatement as prayed. By the order dated 22.07.2008, the said appeal came to be dismissed. Being aggrieved the petitioner has filed the present writ petition.
4. Shri R.A.Haq, learned counsel for the petitioner submitted that the learned Member of the School Tribunal committed an error in recording a finding that the petitioner was appointed only on 20.06.2005. By referring to the various documents placed on record, he sought to submit that the petitioner was appointed on 20.06.2003 and had successfully completed the period of probation. Referring to the advertisement placed on record by the Management, he submitted that there were several inconsistencies in the stand taken by the Management. Though there was no date on the said advertisement, it was shown as 05.06.2005. Similarly, according to the Management, the interviews in question were conducted on 12.06.2005 and not on 06.06.2005 as stated in the advertisement. According to him, even the date of the interview put-forth by the Management was doubtful in the light of the documents placed on record. He referred to the affidavit of one Irshad Ali in which it was stated that the petitioner had been appointed in the year ::: Uploaded on - 01/08/2019 ::: Downloaded on - 15/04/2020 13:31:05 ::: 5 WP4079.08(j) 2005 while the said Irshad Ali had stated that he was appointed in the year 2002. However in the list of employees of the year 2002, the name of said Irshad Ali was not shown. His version therefore was not reliable. According to him, despite substantial material on record indicating the authenticity in the claim made by the petitioner and falsity in the claim made by the Management, the learned Presiding Officer ignored the said documentary material and held that the petitioner was appointed in June 2005. It was thus submitted that as the petitioner had completed service of almost four years, he could not have been terminated without holding any enquiry. He placed emphasis on the documents that were submitted to the State Board of Secondary Education which indicated that the petitioner was in service since the year 2003. It was thus submitted that as the impugned judgment was liable to be set aside and the petitioner ought to be reinstated in service.
5. Shri C.A.Joshi, learned counsel for the respondent nos. 2 and 3- Management supported the impugned judgment. According to him, the School Tribunal had after considering various documents placed on record rightly found that the petitioner was not appointed in June 2003 but he was appointed in June 2005. He submitted that the petitioner had not denied his signatures on the various documents placed on record and there was no reason for the Management to fabricate the said documents. The advertisement pursuant to which the petitioner claimed that he had applied in ::: Uploaded on - 01/08/2019 ::: Downloaded on - 15/04/2020 13:31:05 ::: 6 WP4079.08(j) the year 2003 was not placed on record. With regard to the note appended to the order of approval dated 24.07.2006 it was submitted that the Management had specifically raised an objection in that regard. The approval was required to be treated as having been granted from July 2005. Though the Education Officer was a party before the School Tribunal, no reply on its behalf was filed. Certain documents were placed on record before this Court which were sought to be disputed by the Management. It was therefore submitted that as the services of the petitioner were terminated prior to completion of probation, the appeal had been rightly dismissed by the School Tribunal.
6. Shri V.A.Thakre, learned Assistant Government Pleader for the respondent no.4 referred to the affidavit filed on record. He also referred to the photo copies of various documents placed on record by the respondent no.4.
7. I have heard the learned counsel for the parties at length and with their assistance I have also perused various documents that were placed on record before the School Tribunal. While it is the case of the petitioner that he was appointed on 20.06.2003, it is the case of the Management that the petitioner came to be appointed on 06.06.2005. The date of appointment is relevant in view of the fact that the order of termination is dated 29.03.2007. If it is found that the petitioner was appointed on 20.06.2003 then it would be ::: Uploaded on - 01/08/2019 ::: Downloaded on - 15/04/2020 13:31:05 ::: 7 WP4079.08(j) clear that he had completed the period of probation after two years and was thus deemed to be confirmed on the post of Assistant Teacher. However, if it is found that he was appointed on 06.06.2005 as urged by the Management the order of termination would be before the period of probation is completed. While considering the respective submissions, it is to be noted that such exercise is required to be conducted while exercising jurisdiction under Article 227 of the Constitution of India. While exercising such jurisdiction what is required to be kept in mind is whether the School Tribunal has taken into consideration all relevant material placed before it before recording a finding as to the petitioner's date of appointment. In exercise of that jurisdiction this Court cannot as an appellate Court re-evaluate each document to record its independent conclusions. If the view taken by the School Tribunal after considering the entire material on records is a possible view of the matter then that conclusion would have to be accepted.
8. In the light of the aforesaid aspect it is to be noted that the original order of appointment dated 20.06.2003 or the advertisement pursuant to which the petitioner claims that he had applied for being so appointed have not been placed on record. The Management has placed on record the advertisement dated 05.06.2005. Though it is submitted on behalf of the petitioner that the said advertisement did not bear the date "05.06.2005", on a perusal of said advertisement it can be clearly seen that it requires the ::: Uploaded on - 01/08/2019 ::: Downloaded on - 15/04/2020 13:31:05 ::: 8 WP4079.08(j) candidates to appear before the Management on 06.06.2005 for the purposes of being interviewed. The other advertisements on the same page wherein this advertisement was published also pertain to the period of June 2005 thus giving that advertisement some authenticity. The School Tribunal has accepted the advertisement dated 05.06.2005 as having been issued by the Management.
9. As regards the document of approval and the note appended thereto, it has been stated therein that since the proposals were received by the Office of the Education Officer belatedly the appointments were being approved from 01.07.2005 onwards. It also refers such appointment being made in the year 2002-03 and 2003-04. In this regard, the Management has relied upon the proposal seeking approval to the appointment which indicates the date of the petitioner's appointment to be 20.06.2005. It has also relied upon the communication dated 24.07.2006 which has been received by the Office of the Education Officer wherein it has been stated that no appointments of the concerned candidates were made in the years 2002-03 to 2003-04. The Management thus requested the Education Officer to delete the said note. Similarly reference has been made to the affidavits filed by the petitioner while recording his statement on 29.03.2007. In that statement, the petitioner has himself stated that since prior to two years meaning the year 2005, the petitioner was employed as an Assistant Teacher. This ::: Uploaded on - 01/08/2019 ::: Downloaded on - 15/04/2020 13:31:05 ::: 9 WP4079.08(j) statement of the petitioner has not been disputed by him.
10. Thus after considering these documents the School Tribunal has recorded a finding that the petitioner was appointed in the year 2005 and not in the year 2003. Though much emphasis was sought to be placed by the petitioner on the documents submitted to the State Board of Secondary and Higher Secondary Education that document by itself would not be sufficient to hold that the petitioner was appointed on 20.06.2003. It is seen that the School Tribunal in paras 11 and 12 of its order has given cogent reasons for recording a conclusion that the petitioner came to be appointed with effect from 20.06.2005 by referring to the joining report dated 23.06.2005. When the entire material on record is taken into consideration, it is seen that the School Tribunal was justified in recording a finding in that regard. It would not be open for this Court to substitute that finding merely on the ground that another view could be taken. In any event, I am satisfied that the Management has succeeded in proving that the petitioner was appointed as an Assistant Teacher pursuant to the advertisement dated 05.06.2005 with effect from 20.06.2005. That finding therefore does not deserve to be interfered with.
11. Once it is found that the petitioner was appointed on 20.06.2005, the order of termination prior to completion of the period of probation becomes sustainable in law. It was not urged that the services of the ::: Uploaded on - 01/08/2019 ::: Downloaded on - 15/04/2020 13:31:05 ::: 10 WP4079.08(j) petitioner were wrongly terminated before the completion of the period of probation. In that view of the matter, I do not find any reason to interfere with the judgment of the School Tribunal. The writ petition therefore stands dismissed. Rule stands discharged leaving the parties to bear their own costs.
JUDGE Andurkar..
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