Bombay High Court
Shri Baburao Amrutrao Kharekar vs The State Of Maharashtra And Ors. on 9 October, 1996
Equivalent citations: 1997(2)BOMCR447
Author: S.S. Nijjar
Bench: S.S. Nijjar
JUDGMENT S.S. Nijjar, J.
1. In this petition under Article 226 of the Constitution of India, the petitioner has challenged the judgement and order passed by the Presiding Officer, School Tribunal, Pune Region, Pune in Appeal No. 105 of 1988 dated 20th February, 1989. This appeal had been filed against the action of the respondents whereby the services of the petitioner were ordered to be terminated by an order dated 13th June, 1988. The petitioner has also prayed for a writ of mandamus directing the respondents to reinstate the petitioner on the post of Assistant Teacher with full back wages.
2. Briefly stated the facts leading to the filing of the present petition may be noticed.
3. The petitioner possesses the qualifications of B.Sc. and B.Ed. Therefore, he was eligible to be appointed on the post of Asstt. Teacher. The petitioner applied for the post of Assistant Teacher in response to an advertisement in a newspaper. He was called for interview and was appointed as an Assistant Teacher by an order dated 27th June, 1985. This appointment was with effect from 1-7-1985 in a school managed by respondent No. 2. According to the petitioner, this appointment was against a clear and permanent vacancy. It was, however, mentioned in the order of appointment that the appointment was purely temporary for a period from 1-7-1985 to 30-4-1986. It is further stated that the words temporary and the specific period of one year had no meaning whatsoever because the appointment order did not score out the words "leave/deputation vacancy". In addition to that, the clause of probation for 2 years was also not scored out and therefore in fact this clause of probation was applicable to the petitioner. Respondent No. 2 again issued an advertisement dated 20th May, 1986 inviting applications for the post of Asstt. Teacher. This advertisement mentioned a number of posts. A perusal of the advertisement would show that only the post of Headmaster was shown to be reserved. No other post including the post of Asstt. Teacher was shown to be reserved. The petitioner on the basis of this advertisement was continued for the year 1986-87. The advertisement in fact categorically states that preference will be given to (i) S.C. and S.T. candidates, (ii) Kannada and Marathi both language persons (iii) ladies candidates.
4. By an order dated 30th June, 1986 respondent No. 2 continued the services of the petitioner w.e.f. 1st July, 1986. This order of appointment is identical to the earlier order of appointment dated 27th June, 1985. The petitioner, therefore, resumed his service on 2nd July, 1986. The petitioner was not asked to make any further application nor was he interviewed. He continued to receive his salary and allowances till 14th June, 1987, though the order of appointment dated 30th June, 1986 mentioned the appointment of the petitioner for one year. On re-opening of the school in July, 1987 the petitioner went to the school. However, he was not allowed to join his duties and sign the muster roll on and from the re-opening day of the year 1987-88. The petitioner was directed to submit a fresh application, which he accordingly did on 23rd June, 1987. In pursuance of this, the petitioner was issued an order dated 29th July, 1987. This order is identical to the earlier two orders. However, the petitioner was asked to resume his duties in one of the other schools managed by the respondent No. 2. The petitioner states that during his three years of service in the two schools of the respondent No. 2, his work was satisfactory and no complaint whatsoever was ever made against his teaching ability or his behaviour as a teacher.
5. On 13th June, 1988 the petitioner went to resume his duty in the respondent No. 3 school on the re-opening of the said school for the academic year 1988-89. However, he was surprised when the Headmaster handed him a letter dated 13th June, 1988 expressing his inability to continue the petitioner in services of respondent No. 2 institution. The head of the school had thus terminated the services of the petitioner. The services of the petitioner are governed by the provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and the Rules made thereunder. According to the petitioner, the services of employees of the private schools can be terminated under section 5(3) of the Act and under Rule 28 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 ("the Rules" for short). The three provisions have been reproduced in the petition which are as under:
"Section 5(3).
If in the opinion of the management, the work or behaviour of any probationer, during the period of probation, is not satisfactory, the Management may terminate his services at any time during the said period after giving him one month's notice."
"Rule 28(1).
The services of temporary employee other than on probation may be terminated by the Management at any time without assigning any reason after giving one calender month's notice or by paying one month's salary (Pay and allowances), if any in lieu of notice."
"Rule 38.
"Power to terminate services, etc. The management shall not delegate to any subordinate authority other than the Chief Executive Officer, power to execute the decision of the Inquiry Committee in respect of reduction in rank or termination of service."
According to the petitioner, these provisions make it abundantly clear that the services of the petitioner can be terminated only by the management and not by the Headmaster. There is no provision of delegation to anybody in this respect. The petitioner further submits that the appointment of the petitioner was on a clear and permanent vacancy. He was appointed as a probationer. It was in view of the fact that he was appointed as a Probationer that the proposal was required to be submitted by the Institution for the purpose of approval of the Education Officer of the Zilla Parishad of the District. Thus a proposal for approval of his appointment was sent by the school to the Education Officer. The appointment of the petitioner was approved by the Education Officer, Zilla Parishad, Sangli i.e. respondent No. 4 by his letter dated 13-4-1988. In view of section 114 of the Evidence Act it is pleaded by the petitioner that the approval of the Education Officer raises a presumption that he was appointed on probation. He further states that a Full Bench of the Bombay High Court reported in 50 Bom.L.R. page 728, has held that where Government officers exercise discretion vested in them, they do so in their official capacity and a presumption under section 114 of the Indian Evidence Act, 1872 arises that the official acts are regularly performed. Thus approval once having been granted could not be termed to have been errroneous or illegal. Immediately after the illegal termination, the petitioner had approached the respondent No. 4, who directed the petitioner to approach the School Tribunal as that was the appropriate remedy available to the petitioner. The petitioner accordingly approached the School Tribunal under section 9 of the Act by filing an appeal before the Presiding Officer, School Tribunal.
6. Before the Tribunal, the petitioner reiterated that his appointment was on a clear and permanent vacancy from the year 1985-86. He was on probation for a period of 2 years and, therefore, he is deemed to be a permanent employee of respondent No. 2. He makes an allegation against the President of the respondent No. 2 in that he was demanding payment of Rs. 5000/- by way of donation before issuing the order of appointment. The petitioner has made the said donation. The petitioner took the further ground that the respondents have violated the law and also principles of natural justice. The respondents have terminated the services of the petitioner for extraneous considerations and the termination is not based on genuine grounds. The petitioner being a confirmed employee, his services could not be terminated except by way of punishment. The respondents have terminated the services of the petitioner only with an intention to exploit the situation for extracting more amount of donation from the new candidates who would be appointed on the post. The respondent No. 2 has no legal authority to terminate the services of the petitioner, in the manner the order of termination was passed.
7. The respondents filed a written statement on the basis of which the Tribunal framed certain points for determination. Point No. 1 is whether the post of Asstt. Teacher held by the petitioner was reserved or unreserved. The Tribunal has given a finding that the post was reserved for S.C. or S.T. or D.T.N.T. Point No. 2 was whether the appellant was temporary on an year to year basis or was on probation for a period of two years. This point has been answered to the effect that his appointment was temporary on an year to year basis. The Tribunal has further come to the conclusion that the respondents are not a minority institution. The policy of reservation is applicable to the schools being run by the respondents.
8. The Tribunal further held that the management did not maintain a roster in the prescribed form. Thus no extract of the roster has been produced. He further observed that the management has produced two seniority lists of the teaching staff in its aided schools for the year 1985-86 and that of the teachers in its unaided schools for that year. He observed that to determine whether a particular vacancy is reserved or unreserved reference has to be made to the Model Roster which is to be maintained in accordance with Instruction No. 2 of Government Circular dated 24th October, 1979. He further observed that the reserved vacancies carried forward from the previous 5 years should be added to the following year and adjusted against the open vacancies of the current year. From the seniority list of teachers produced, the Tribunal comes to the conclusion that according to the roster 36 members of the respondent No. 2 institution should belong to the reserved categories. This should include 8 S.C., 3 S.T., 2 DTNT and 4 O.B.C. members, It is observed that in fact the said teaching staff included only 3 members of the Scheduled Caste, one Scheduled Tribe and 22 other Backward Class members. Thus it is concluded that at the time of the petitioner's appointment there was a backlog of 5 Scheduled Caste, 3 Scheduled Tribe and 1 VJNT/DTNT members in the teaching staff. From the seniority list of 1985-65 he also concludes that there were six new appointments of teachers including the petitioner. These six teachers were appointed on 1-7-85, 16-6-85, 4-2-85 1-7-85 (petitioner), 5-8-85 and 4-9-85. He further observed that even for purposes of reservation and carry forward rules, the appointments cannot exceed 50 per cent in any year. Thus it was open to the management to treat 3 posts of Asstt. Teacher filled during 1985-86 as 6 unreserved and the remaining 3 posts filled in that year as reserved. The remaining three had to be filled on the basis of reservation. The petitioner belonging to the O.B.C. has to be treated as having been appointed against a reserved vacancy. Thus, according to Rule 9(g) (a) he could only be given a temporary appointment. The petitioner, it is concluded, stands on the same footing as an open category candidate. Thus the question of being appointed on probation does not arise. The approval granted by respondent No. 4 is termed as erroneous.
9. Mr. Pitre, learned Counsel for the petitioner, submits that the findings of the Tribunal on the aforesaid issue are perverse on both the counts. He submits that the post against which the petitioner was appointed could not be treated as a reserved post nor could he be treated to have been appointed only on a temporary basis. On the first point he says that he applied in response to an advertisement which has been attached with the writ petition. A perusal of the advertisement would show that the post has not been shown to be reserved. Rather the advertisement merely says that preference will be given to candidates belonging to S.C., S.T. Kanada speaking candidates and lady candidates. He further points out that wherever reservation was provided it was specifically mentioned in the advertisement that the post is reserved. Thus, in the advertisement at serial No. 1 post of Headmaster which has been advertised has been shown as reserved. Moreover, it is emphasised by the Counsel for the petitioner that the order of appointment issued to the petitioner clearly indicates that he has been appointed against a clear permanent vacant post. The order of appointment states that he is appointed on probation for a period of 2 years. If this recital was to be found only in one of the appointment orders may be it could be said that it was by mistake that the word "on probation" had not been deleted. But all the three appointment orders issued to the petitioner are identical and in all three the petitioner has been shown to be on probation . He further submits that approval of the Education Officer under the rules is required only if a person is appointed against a permanent vacant post. There is no need to get the approval of the Education Officer if a person is appointed on a temporary basis. Had the petitioner been appointed only on account of the fact that candidates belonging to reserved categories are not available then there is no question of sending a proposal to respondent No. 4 to accord approval to the appointment of the petitioner. He further submits that not only was the proposal for approval sent to respondent No. 4 but it was actually granted on 13th April, 1988. These are the factual aspects on which the petitioner relies to show that he was appointed against a clear permanent post and further to show that by virtue of operation of law he had become a confirmed employee of respondent No. 2. The petitioner further relies on a Division Bench decision of this Court in the case of Anjarla Shikshan Sanstha v. Smt. Kumudini D. Kulkarni, W.P. No. 4623/85 delivered on 30-3-1988 by Pendse and Sugla,JJ., wherein it has been clearly held that it is necessary for the institution to produce the relevant record and prove that there was a vacancy for the reserved candidate or there was a backlog in respect of the vacancy. The facts of the case decided by the Division Bench are almost identical to the facts of the present case. The Division Bench has held :
"Mrs. Belose, learned Counsel appearing on behalf of the institution, reiterated the submissions urged before the Tribunal. The learned Counsel urged that the appointment of the teacher was against reserved category and the appointment was made because the backward class candidate was not available during the relevant three academic years. Reliance was placed on Rule 8(9) (a) to contend that the institution is entitled to fill the post temporarily on year to year basis when the candidate belonging to backward class is not available. It was submitted that the appointment of teacher being in that capacity, the question of the teacher being appointed on permanent basis does not arise. It is not possible to accede to the submission of the learned Counsel for more than one reason. In the first instance, as observed by the Tribunal, the institution did not bother to produce the relevant record to establish that the appointment of the teacher was against reserved category. It was essential for the institution to produce the relevant record and establish that in accordance with the roster, the post was reserved for backward class candidate. In addition to that, it was necessary to establish how the appointments were made subsequent to academic year 1982-83. The institution pointed out to the Tribunal that Mr. Mondkar who was a permanent teacher had resigned and in his place Mr. Kaldhone was appointed even though respondent No. 1 was immediately next to Mr. Mondkar in seniority. Apart from Kaldhone, Mr. Kumbhar was also appointed subsequently. It is not open for the management to merely claim that the appointment was made against reserved vacancy. Such a bald claim will not be accepted by any Tribunal. It is necessary for the institution to produce the relevant record and prove that there was a vacancy for the reserved candidate or there was a back-log in respect of the vacancy. The Tribunal would then be required to enquire as to whether any teacher was subsequently appointed and retained while removing respondent No.1 from the employment. The Tribunal noted that the institution did not care to produce any record and, therefore, the contention that the appointment was against the reserved category could not be accepted. We are unable to find any infirmity in this conclusion."
Moreover, learned Counsel has also referred to a circular wherein detailed procedure has been prescribed as to maintenance of roster. If the roster is not maintained in that particular manner it would not be possible to know precisely which post is reserved and which is not reserved. In fact, a Full Bench of this Court in the case of Gopalkrishna Ramchandra Chavan and ors. v. State of Maharashtra and ors, reported as A.I.R. 1987 Bombay 123 has in paragraph 26 observed that :
"the logical corollary of reservation of posts is roster and the logical corollary to the roster is the carry forward rule for a particular number of years."
It is submitted by Mr. Pitre that in view of the non-production of the roster, the Tribunal could not have come to the conclusion, purely on the basis of the seniority lists, that the post against which the petitioner had been appointed was reserved for the Backward Class Candidates. We find merit in the submission of the Counsel for the petitioner. If the post had been reserved it would have been indicated in the advertisement that it is so reserved. If the petitioner had been appointed against the reserved post it would have been mentioned in the order of appointment that he has been appointed on a reserved post. If the petitioner had been appointed against a reserved post he would have been appointed for a temporary period of one year. This again would have been mentioned in the order of appointment. If the post had been a reserved post then there is no question of sending the proposal for approval to respondent No. 4 for his appointment. If the post had been a reserved post then the respondents would have produced a roster which has been maintained in accordance with the Rules. No such roster has been produced either before the Tribunal or before this Court. Not only this, the respondents have not even cared to put in an affidavit in reply to controvert the factual averments which have been made in the petition. No Counsel has put in an appearance on behalf of respondent Nos. 2 and 3. It has been settled by a Division Bench of this Court that it is for the management to give cogent proof of the fact that the post is reserved. The Tribunal lost sight of all these facts and gave a finding purely on the basis of the seniority list that the post is reserved and the petitioner had been appointed on a temporary basis. We are inclined to accept the submissions made by the Counsel for the petitioner and hold that the finding of the Tribunal on the first point are perverse. We hold that the petitioner has been appointed against an open category post which was lying vacant and was of a permanent nature. We further hold that the petitioner had been appointed on probation and after completion of two years of service on probation he is deemed to have been confirmed under the Rules. Thus his services could not have been terminated except as provided under the Rules. The Counsel for the petitioner further submits that even otherwise the order of termination is violative of Articles 14 and 16 of the Constitution of India. He submits that there are not less than 11 persons who have been appointed on the said post after termination of the services of the petitioner. In fact, the Tribunal himself has noticed in the judgement that two persons who had been appointed after the petitioner are still continuing in the services of respondent No. 2. So far as 11 persons appointed after the petitioner, they are mentioned in the written arguments presented before the Tribunal. However, as is evident from a reading of the order of the Tribunal, he has not bothered to read the written arguments as he disposes them off by simply saying that no new ground or submission has been made. It is settled proposition of law that Article 16(1) forbids discrimination in matters of employment. This guarantee of equality is not restricted only to the posts which are held in a permanent capacity. Even temporary employees, adhoc employees have to be treated with an even hand. Articles 14 and 16(1) guarantees that persons similarly situated have to be treated alike. Equals have to be treated equally. Any classification made within a homogenous group of employees has to be reasonable. There must be rational basis for the said classification. This view of ours finds support of the Supreme Court in the case of Jarnail Singh v. State of Punjab, . In paragraphs 34 and 35 it is mentioned as follows.
"34. Similar observations have been made in the case of Manager, Govt. Branch Press v. D.B. Belliappa, . It has been held that the protection of Arts. 14 and 16 of the Constitution will be available even to a temporary Government servant if he has been arbitrarily discriminated against and singled our for harsh treatment in preference to his juniors similarly circumstanced. In that case the service of Belliappa, a temporary Class IV employee was terminated without assigning any reason although in accordance with the conditions of his service, three other employees similarly situated, junior to Belliappa in the said temporary cadre, were retained. The order of termination was held to be bad as it offended the equality clause in Arts. 14 and 16 of the Constitution.
35, In the instant case, ad hoc, services of the appellants have been arbitrarily terminated as no longer required while the respondents have retained other Surveyors who are junior to the appellants. Therefore, on this ground also, the impugned order of termination of the services of the appellants are illegal and bad being in contravention of the fundamental rights guaranteed under Arts. 14 and 16 of the Constitution of India."
As noticed earlier, the petitioner was appointed on 1-7-85, while two others were appointed on 5-8-85 and 4-9-85. These two appointees are continuing in service, while the services of the petitioner have been terminated. In view of the above, we hold that the petitioner has been discriminated against and the order of termination has to be quashed on this short ground. One further ground advanced by the learned Counsel for the petitioner is that the order of termination has been passed on extraneous considerations. He states that the foundation of the order actually is that the management had somehow come to the conclusion that the petitioner was taking active part in party factions within the management. Therefore, it was felt necessary to remove him. These facts are noticed by the Tribunal in paragraph 19 of the judgement. It is noticed that the petitioner had managed to obtain the order of appointment on 13th June, 1987 from Shri Patil, Vice President of the Sanstha. After noticing all the facts, the Tribunal holds that these facts indicate that the petitioner took active interest in the party factions in the management and that he supports the party factions led by Shri Patil, Vice President of the Sanstha. It is concluded :
"that therefore the management of the Sanstha did not think it desirable to give fresh order of appointment to the appellant during 1988-89. The validity of the order of termination dated 13th June, 1988 is not adversely affected on account of the said fact and also on account of the circumstances referred to in paragraph 18 above."
10. In view of the settled proposition of law that no order causing civil consequences can be passed without observing the rules of natural justice, we have no hesitation in holding that the finding arrived at by the Tribunal is wholly incorrect. Reference in this case again shall be made to the case of Jarnail Singh (supra) in which it is clearly held by the Supreme Court as under :
"The mere form of the order is not sufficient to hold that the order of termination was innocuous and the order of termination of the services of the probationer or of an ad hoc appointee is a termination simpliciter in accordance with the terms of the appointment without attaching any stigma to the employee concerned. It is the substance of the order i.e. the attending circumstances as well as the basis of the order that have to be taken into consideration. In other words, when an allegation is made by the employee assailing the order of termination as one based on misconduct, though couched in innocuous terms, it is incumbent on the Court to lift the veil and to see the real circumstances as well as the basis and foundation of the order complained of. In other words, the Court, in such a case, will lift the veil and will see whether the order was made on the ground of misconduct/inefficiency or not. In the instant case allegations of serious misconduct against the petitioners and also the adverse entries in the service records of these petitioners were taken into consideration by the Departmental Selection Committee without giving them any opportunity of hearing and without following the procedure provided in Article 311(2) of the Constitution while considering the fitness and suitability for the purpose of regularising their services in accordance with the Government Circular made in October, 1980. Thus the impugned orders terminating the services of the petitioners appellants on the ground that " the posts are no longer required" are made by way of punishment."
Following these observations we have examined the case of the petitioner as to whether he has actually been removed rather than terminated. It is evident that the management was having an impression that the petitioner was indulging in party faction against the President. It is, therefore, mentioned in the judgement of the Tribunal that because of the party faction in which the petitioner indulged, the management felt that it was not desirable to give fresh appointment to the petitioner. The services of the petitioner had been terminated on extraneous considerations. Without complying with rules of natural justice the petitioner has been found guilty of supporting the Vice President in the party faction in the respondent No. 2 Institution. If such a conclusion was to be drawn against the petitioner then it was necessary to hold an enquiry as provided under the rules. Once the petitioner had completed two years of service on probation he is deemed to be a confirmed employee. No confirmed employee can be dismissed, removed or terminated without complying with the procedure as prescribed under the rules. No charge-sheet was issued to the petitioner. No enquiry was held. Thus the order of termination is clearly not only against the principles of rules of natural justice but is also against the statutory provisions contained in the Act. In view of the findings recorded above, the petition is allowed.
11. Rule is made absolute in terms of prayer clauses (b) and (c). The respondents are directed to pay the full back wages to the petitioner within a period of four months. There will be no order as to costs.