Bombay High Court
Anjuman Tausi-E-Taleem And Ors vs Mohmed Akhalaque Mohmed Anwar Dhongre ... on 13 September, 2017
Author: A.A.Sayed
Bench: A.A. Sayed
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.4429 OF 2001
...
1. Anjuman Tausi-E-Taleem
through its President
2. The Head Master,
Anglo Urdu High School
3. Mr.Mohmed Asmat Bubere
President
4. Mr.Mustafa S.Pounjekar
Vice President
5. Mr.Abdul Raheem Bhaiji
Secretary
6. Mr.Ibrahim K.Adhal
Secretary ...Petitioners
(Org.Respondent Nos.1, 2, 3, 7, 8, & 9)
v/s.
1. Mr.Mohmed Akhalaque Mohmed
Anwar Dhongre
2. Mr.Zaid Mustafa Naje
General Secretary
3. Mr.Abdul Kadir Hasan Tiwale
Treasurer
4. Mr.Anwar A.R.Dhongre
Vice President
5. Mr.Abdul Rashid A.Dhongre
Member
6. Mr.Gulam Rassod B.Nachan
Member
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7. Mr.Shafique A.Dhongre,
Member
8. Mr.Abdul Kadri A.K.Juari
Member
9. The Education Officer
Secondary Section, Z.P.,Raigad
10. The Presiding Officer,
School Tribunal, Pune ...Respondents
(Org. Appellant, Org.Resp Nos.4,5,6,10-14)
...
Mr.N.V.Bandiwadekar for the Petitioners.
Mr.Subhash Langote with Mr.Vishnu Madane for the Respondent No.1.
Mr.Dilip Bodake for the Respondents Nos.2 and 4 to 8.
Mr.A.R.Metkari, AGP for State.
...
CORAM : A.A. SAYED J.
RESERVED ON : 9 MARCH 2017
PRONOUNCED ON: 13 SEPTEMBER 2017
JUDGMENT:
The challenge in this Petition under Articles 226 and 227 of the Constitution is to the judgment and order dated 26 February 2001 passed by the School Tribunal, Pune Region, Pune, in an Appeal filed by the Respondent No.1/Org. Appellant under section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act,1977 challenging his otherwise termination. By the impugned order the School Tribunal allowed the Appeal of the Respondent No.1 and set aside his otherwise termination and the Management was directed to Uday.P.Kambli 2/32 ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 01:51:13 ::: 3/32 WP_4429_of_2001.doc reinstate the Respondent No.1 with full backwages. The operative part of the impugned judgment reads as follows:
"ORDER
1. The Appeal is allowed.
The impugned action on the part of the Respondent No.1/Management in terminating services of the Appellant otherwise at the commencement of the academic year 2000-2001 is hereby set aside.
The Respondent No.1/Management is hereby directed to reinstate the Appellant in service as an Asst.Teacher with full backwages.
2. No order as to costs.
Respondents to comply with the above directions within a period of two months from the receipt of this order.
It is hereby recommended to the State Government that the backwages directed to be paid to the Appellant may be deducted from the grant due and payable to the Management and be paid to the employee direct."
2. For the convenience of reference, I shall refer to the parties as they were arrayed in the Appeal before the School Tribunal.
3. The case of the Appellant (Respondent No.1 herein) in the Appeal was as follows:
The Management was running a secondary school under the name and style of 'Anglo Urdu High School at Nerul'. The Management appointed him as a junior clerk in the school with effect from 02-08-1993 vide an order of appointment dated 25-07-1993. Thereafter, he came to Uday.P.Kambli 3/32 ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 01:51:13 ::: 4/32 WP_4429_of_2001.doc be appointed as Assistant teacher on regular basis with effect from June 1994. At the time of his appointment, he was B.Com. D.Ed. In addition to the work of Assistant teacher, he was also asked to discharge the duties of clerk. He then took admission for part-time B.Ed. course and completed the said B.Ed. course in March 1999. The Management had given an undertaking dated 01-01-1997 to the effect that they would continue him as an Assistant teacher during his B.Ed. course and even after completion of that course. He had served in the school as Assistant teacher. He was however not paid the salary since June 1996. Two appointment orders dated 26-09-1996 and 01-06-1997 came to be issued in his name. His appointment as Assistant teacher was on a clear and permanent vacancy. Therefore, his appointment was on probation. He had acquired the status as a probationer. The appointment orders issued to him were for one academic year, but that could not affect his status as a probationer and on completion of two years employment, he was deemed to be a permanent employee. He was never issued any memo or warning during his service. However all of a sudden on 15-06- 1998 he was issued an order of termination dated 29-04-1998 terminating his services with effect from 30-04-1998. He preferred Appeal No.43/1998 before the School Tribunal challenging the legality and validity of the order of termination. When the notice of the Appeal was served upon the Management, vide letter dated 28-06-1998 Uday.P.Kambli 4/32 ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 01:51:13 ::: 5/32 WP_4429_of_2001.doc communicated to him that his services were continued with retrospective effect w.e.f. 15-06-1998 as per the Resolution passed on 28-06-1998. As his services were continued he has submitted a pursis dated 28-07-1998 before the Tribunal, which was counter signed by the General Secretary of the Management namely Zaid Mustafa Naje - Respondent No.4. Salim Shaikh, the Head of the School and Mahmad Asmant Bubere, the President-Respondent No.3 and one Mustafa H.Pounjekar-Respondent No.7, who had some grudge against him were trying to harass him and spoil his service record. Though, he continued to serve in the school, he was not allowed to sign the muster from the commencement of the academic year 1999-2000. He made representation dated 16-09-1999 to the Head of the School. He also approached the office bearers of the Management contending that he had not been allowed to sign the muster and he would therefore approach the School Tribunal. He was then allowed to sign the muster roll with retrospective effect i.e. from June 1999. When the School reopened after summer vacation on 12-06-2000, he was not allowed to sign the muster roll or discharge his duties. No order of termination was issued to him. No meeting of the Management had taken place since January 1999 and therefore no decision taken or any resolution pass to terminate his services. He was a permanent employee and could not have been terminated unless he was found guilty of serious charges of Uday.P.Kambli 5/32 ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 01:51:13 ::: 6/32 WP_4429_of_2001.doc misconduct and only if such charges were proved before the duly constituted Inquiry Committee. His father himself being one of the Vice Presidents of the Management, he could not take any legal action immediately against the Management or against the Head of the school. He, therefore, made representation dated 15-9-1999 to the Head of the School. Even, thereafter till December 1999 he continued to work in the School, but he was not allowed to sign the muster. The Head Master or the President of the Management had no right or authority to terminate his services and their action was not supported by any decision of the Management. Majority members of the Management were supporting him and not in favour of terminating his services.
4. Written Statement was filed in the Appeal on behalf of the Respondent No.1 (Management through its President), Respondent No.2 (Head Master), Respondent No.3 (Mohmed Asmat Bubere- President), Respondent No.5 (Abdul Kadir Hasan Tiwale-Treasurer), Respondent No.7 (Mustafa S.Pounjekar-Vice President), Respondent No.8 (Abdul Raheem Bhaiji- Joint Secretary), Respondent No.9 (Ibrahim K. Adhal-Secretary), Respondent No.11 (Gulam Rasood B.Nachan- Member) and Respondent No.13 (Abdul Kadri A.K.Juari-Member), who were the office bearers of the Management. Their case in the Written Statement was as follows:
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7/32 WP_4429_of_2001.doc The documents produced on record would show that bonafide efforts were made by the Respondents to appoint the Appellant as Assistant Teacher in the school. The Appellant was appointed for a fixed period purely on temporary basis from time to time as honorary Assistant teacher at his request and request of Respondent No.6- Anwar Dhongre, the father of the Appellant, who happens to be the first Vice President of the Institution. They had helped the Appellant for getting admission for B.Ed. course while working as honorary Assistant teacher. They had even sent a proposal for approval of the Appellant to the post of Assistant teacher to the Education Officer, Zilla Parishad, Raigad. However, in spite of all efforts, the Education Officer refused to approve his appointment as Assistant teacher on the ground that he had no requisite qualification i.e. B.Sc. B.Ed. The Education Officer by his several letters refused to appoint the Appellant as Assistant teacher in the School. They did not have any right or authority to appoint the Appellant and it was the Education Officer who was the appointing authority and he had refused to approve the appointment of the Appellant. The Appellant himself had left the post of clerk and had requested to appoint him as honorary Assistant teacher and the Respondents helped him getting admission for B.Ed. course. One Khan was appointed in place of the Appellant as a clerk and thereafter Asif Lagad, who is the relative of the Appellant, who had been brought by the Uday.P.Kambli 7/32 ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 01:51:13 ::: 8/32 WP_4429_of_2001.doc Appellant himself, was appointed as a clerk in place of Khan and till date the said Asif Lagad is permanently working as a clerk in the school. There is only one post of clerk in the school and the said post is permanently occupied by Asif Lagad. The Appellant himself on his own accord has left the post of clerk and under undue pressure and influence of his father (Respondent No.6), who was the Vice President of the Institution, he came to be appointed as honorary Assistant teacher in the school temporarily for a fixed period of eight months i.e. from 01-10-1996 to 31-05-1997. In order to facilitate and assist the Appellant to complete the B.Ed. course, he was appointed as honorary Assistant teacher temporarily for a period of one year i.e. from 13-06-1997 to 29-04-1998 on the request of his father (Respondent No.6-Vice President of the Management). In the meantime, the Education Officer vide letter dated 13-04-1998 informed and directed the Principal-Respondent No.2 that the Appellant was only B.Com. and as per the Rules, eligibility for the post of Assistant teacher is B.Sc. B.Ed., or B.A. B.Ed., and therefore the Appellant was not eligible for the post and that such type of untrained teacher should not be appointed in future. After receipt of the aforesaid letter dated 13-04-1998 of the Education Officer, the Respondents rightly and legally terminated the services of the Appellant with effect from 30-04-1998. Since the appointment of the Appellant was only for a limited period of one year on temporary basis no letter of termination Uday.P.Kambli 8/32 ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 01:51:13 ::: 9/32 WP_4429_of_2001.doc was required to be issued. In the meantime, on 17-03-1999, the Block Education Officer, Karjat during his inspection made following remarks against the Appellant:
"It is a serious misconduct that Mr.Akhalaque Dhongre, B.Com.B.Ed., whose appointment was refused, is still working. Instead of him B.A. B.Ed. or School subject teacher be appointed".
After expiry of one academic year, in view of the aforesaid remarks passed by the Block Education Officer dated 17-03-1999, the Appellant was not allowed to work and teach in the school. No notice of termination was issued as the Appellant was not appointed either on probation or permanently and as his appointment was on purely temporary for a fixed period of one year. Since June 1999, they never appointed the Appellant to work as Assistant teacher in the School, the Appellant with the help of his father who was the Vice President (Respondent No.6) and the General Secretary (Respondent No.4) forcibly and highhandedly used to work as honorary Assistant teacher in the school against the rules and regulations of Department of Education and also against the wishes of the Respondents and the School Committee Members. The Respondent No.6-Vice President and the Respondent No.4-General Secretary are highly influential persons having strong roots in the local area of Neral, Karjat. They had assured the Managing Committee and the School Committee Members that after completion of B.Ed. course by the Appellant, they will bring approval and Uday.P.Kambli 9/32 ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 01:51:13 ::: 10/32 WP_4429_of_2001.doc the sanction of the Appellant for the clear vacancy of Assistant Teacher from the Education Officer and therefore the Managing Committee reluctantly and in good faith did not stop the Appellant to attend the school and teach students, though the performance of the Appellant was very poor and totally unsatisfactory. The Head Master of the School received letters from the Education Officer dated 18-03-2000 and 09-05- 2000 calling upon his explanation on the complaint of one A.A.Naze against the Appellant. The said letter was replied to by the Head Master. Again on 04-02-2000, the Block Education Officer, Panchayat Samiti, Karjat, during his yearly inspection to the school passed following remarks against the Appellant as well as the Managing Committee:
"Mr.Akhalaque Dhongre is B.Com. B.Ed. His appointment as a teacher was already refused. He is still kept by the institution. Immediate action be taken for the same. Instead of B.Com. B.Ed., B.Sc. B.Ed. teacher be appointed."
The Appellant himself requested for his appointment as honorary Assistant teacher from time to time temporarily for a fixed period. The Appellant was terminated on 30-04-1998. Thereafter, his services were finally terminated and expired automatically at the end of one year fixed term period i.e. in the month of April 1999. Various remarks and letters of the Education Officer from time to time show that the Appellant was not possessing requisite qualification and the Appellant had to be removed from services from the post of honorary Assistant teacher. They had Uday.P.Kambli 10/32 ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 01:51:13 ::: 11/32 WP_4429_of_2001.doc rightly, legally and in the interest of the Institution and School stopped the Appellant from attending the school and teaching the students. It was not correct to say that the Appellant was working as a teacher from June 1994 and asked to discharge duties of clerk. The Appellant as a matter for fact was working as only clerk upto year 1996. The Respondents Nos.4 and 6 forced the Managing Committee to appoint the Appellant as honorary Assistant teacher in the School and to allow him to do B.Ed. course. It was not true to say that the Management had given any undertaking to the Appellant. In fact vide letter dated 1-01-1997, the Respondent No.3-Mohmed Bubere in good faith assured the Appellant to appoint him as Assistant teacher subject to successful completion of B.Ed. course and subject to approval and sanction of the Education Officer. It is not true that the Appellant was appointed on regular basis. It was not true to say that the Appellant was not paid his salary from June 1996. The Respondent Nos.1 and 3 were not at all aware of the alleged Resolution dated 28-06-1998 passed in the Meeting of Management thereby continuing the services of the Appellant with retrospective effect from 15-06-1998 and they were shocked and surprised to find and see the copy of the alleged resolution, which was served alongwith the Appeal Memo for the first time. As a matter of fact, Management meeting was held on 28-06-1998 and it was resolved in the said meeting that the Appellant who has been terminated on 30-04-1998 was Uday.P.Kambli 11/32 ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 01:51:13 ::: 12/32 WP_4429_of_2001.doc reappointed for next academic year 1998-99 temporarily as Assistant teacher. Immediately thereafter, the Respondent No.3 called upon the Respondent Nos.6 and 4 and the Appellant to give explanation regarding the aforesaid false and fabricated Resolution alleged to have been passed in the Management meeting on 28-06-1998. However, they refused to meet the Respondent No.3. The Respondent No.3, thereafter, called minutes book of the said meeting dated 28-06-1998 from the General Secretary (Respondent No.4). The Respondent No.4, however, said that the minutes book and other documents are in the custody of the first Vice President (Respondent No.6)-father of the Appellant. The Respondent No.3, therefore, issued a notice dated 04-08-2000 to the Respondent No.6 calling upon him to handover and submit the minutes book and other documents of the Institution in the office of the school. However, the Respondent No.6 refused to acknowledge the receipt of the notice dated 04-08-2000 and he was avoiding and refusing to hand over and submit custody of the minute book and other documents. Since the Respondent No.6 refused to acknowledge the receipt of the notice, a statement of Asif Lagad who had delivered the said notice/letter dated 04-08-2000 to the Respondent Nos.4 and 6 was called upon by these Respondents and he has vide 12-08-2000 submitted that he has delivered the letter to the Vice President (Respondent No.6) and Rashid Dhongre (Respondent No.10), however they have refused to Uday.P.Kambli 12/32 ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 01:51:13 ::: 13/32 WP_4429_of_2001.doc acknowledge receipt of the same. The documents filed by the Appellant at serial Nos.11 and 12 alongwith the list of documents were false and fabricated. No such resolution was ever passed in the meeting thereby continuing the services of the Appellant from 15-06-1998. The signature of the Respondent No.3 on the aforesaid documents i.e. letter dated 28-06-1998 and the resolution of the meeting of the Managing Committee have been obtained by the Respondents Nos.4 and 6 by fraud and misrepresentation. Respondents Nos.4 and 6 have committed serious criminal offence by fabricating false documents. These Respondents did not have any personal grudge against the Appellant and on the contrary made good and genuine efforts to help the Appellant during the course of B.Ed. After receipt of the letter dated 15-09-1999 these Respondents orally informed the Appellant that the Education Officer has to give approval and sanction to his appointment and therefore he should not attend the school. However, the Appellant with the help of Respondents Nos.4 and 6 forcibly and unauthorizedly attended the school as honorary Assistant teacher. The Appellant was working as honorary Assistant teacher from time to time till October 1996 till he terminated in the year 1998.
5. Separate Written Statement was also filed on behalf of the Respondents No.4 (Zaida Mustafa Naje, General Secretary), Respondent No.6 (Anwar A.R.Dhongre, Vice President), Respondent Uday.P.Kambli 13/32 ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 01:51:13 ::: 14/32 WP_4429_of_2001.doc No.10 (Abdul Rashid A.Dhongre, Member) and Respondent No.12 (Shafique A.Dhongre, Member), before the School Tribunal. In the said Written Statement, it is interalia pointed out that the Resolution dated 28- 06-1998 was signed by the Respondents Nos.3 & 4 and therefore the Respondents Nos.1 and 3 were aware of the said Resolution dated 28- 06-1998. It is pointed out in the said Written Statement that the letter dated 04-08-2000 was received by the Respondent No.3 on 14-08-2000, but he refused to acknowledge the same. A separate Written Statement was also filed before the School Tribunal on behalf of the Respondent Nos.11 (Gulam Rassod B.Nachan, Member) and Respondent No.13 (Abdul Kadri A.K. Juari, Member).
6. After hearing the parties, the School Tribunal vide the impugned order dated 28 February 2001 allowed the Appeal of the Respondent No.1/original Appellant as indicated in paragraph 1 hereinabove.
7. I have heard Mr.Bandiwadekar, learned Counsel for the Petitioners, Mr.Langote, the learned Counsel for the Respondent No.1/original Appellant, Mr.Bodake, learned Counsel for the Respondents Nos. 2, 4 to 8 and the learned AGP for the State. Uday.P.Kambli 14/32 ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 01:51:13 :::
15/32 WP_4429_of_2001.doc Mr.Bandiwadekar has placed reliance on the following judgments:
i. Sanjay Lalbahadur Divedi v/s. Shrikrishna Vyayam Shala, 2010 (3) Bom.C.R. 604;
ii. Harlal Harchand Pardeshi v/s. State of Maharashtra and ors., 2001(1) Mh.L.J. 859;
iii. Priyadarshini Education Trust and ors. v/s. Ratis (Rafia) Bano d/o Abdul Rasheed and ors., 2007 (6) Mh.L.J. 667; iv. Ramkrishna Chauhan and ors. v/s. Seth D.M.High School and ors., 2013 (2) Bom.C.R.481;
v. Mrs.Sneh Kohli v/s. The Universal English Trust & Ors., Writ Petition No.5247 of 1998 (A.S.) decided on 18 October 2016;
vi. Datta Shelke Education Society and anr. v/s. Namdeo Shankar Patil and ors., 2010(5) Mh.L.J. 543;
vii. Rayat Shikshan Sanstha and anr. v/s. Yeshwant Dattatraya Shinde, 2009 (6) Mh.L.J. 476;
viii. Deepali Gundu Surwase v/s. Kranti Junior Adhyapak Mahavidyalaya, 2014 (2) Mh.L.J. 480;
ix. Pragnya Vasant Acharya v/s. The State of Maharashtra & ors., Writ Petition No.767 of 2007 (decided on 12 December 2012);
x. Pragati Mahila Samaj and anr. v/s. Arun s/o Laxman Zurmure and ors., (2016) 9 SCC 255;
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16/32 WP_4429_of_2001.doc xi. Mangala B. Kulkarini v/s. The Chairman, Chhatrapati Shikshan Mandal & ors., Writ Petition No.4950 of 2004 (Decided on 4 January 2017);
Mr.Langote has relied upon the following judgments:
i. Yogeshwar Vikas Sanstha & ors. v/s. Rajendra T.Shinde & Anr., 2007(6) Mh.L.J. 698;
ii. Raghunath Bapu Nangare Vs. Jai Shivrat Shikshan Prasarak Mandal & ors., 2016 (1) Bom.C.R.236;
iii. The Secretary, Niti Niketan Shikshan Sanstha & Anr. v/s Smt.Vaishali Ramdas Thote & Anr., 2016(2) All MR 371; iv. Anjuman Khairul Islam & ors. v/s. Zulekha Mazhar Hussain (Mrs.) and ors., 2001(1) Bom.C.R. 556;
v. Malanbai d/o Tukaram Satpute v/s. Deputy Director of Education & ors., 2002(2) Bom.C.R. 677;
vi. Suryakant Sheshrao Panchal v/s. Vasantrao Naik Vimukta Jati, Bhatakya Jamati Aadarsh Prasarak Mandal and ors., 2002(3) Mh.L.J. 659;
vii. Dnyan Vikas Mandal v/s. Parashram s/o Laxman Lokhande and ors., 1991 Mh.L.J. 830;
viii.Sadhana Janardhan Jadhav v/s. Pratibha Patil Mahila Mahamandal, 2013(2) Mh.L.J. 484;
ix. High School Education Society v/s. Presiding Officer, School Tribunal & anr., 2005 (2) All MR 138;
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17/32 WP_4429_of_2001.doc x. Ravindra Singh v/s. Phool Singh and another, (1995) 1 SCC 251;
xi. Union of India and ors. v/s. Dhanwanti Devi and ors., (1996) 6 SCC 44;
xii. Union of India v/s. Chajju Ram (Dead) by L.Rs. & ors., 2003(3) All MR 766(S.C.);
xiii. Abdul Rafiq Abdul Hamid v/s. Yavatmal islamia Anglo Urdu Education Society and ors., 2014(3) Mh.L.J. 99; xiv. Shamin Azad Education Society, Giroli v/s. Presiding Officer, School Tribunal, Amravati and ors., 2014(4) Mh.L.J. 723; xv. Sant Gajanan Maharaj Bahu Uddshiya Shikshan Prasarak Mandal & ors. v/s. Devendra Bhagwani Matode & ors. WP No.1727/2007 (Decided on 08-10-2008);
xvi. Shri Sambhaji Iswhar Kalkambkar v/s. Sharada Shikshan Prasarak Mandal & ors. WP No.712 of 2013 (Decided on 6-12- 2013) Mr.Bodake has relied upon the judgment in the case of Namdeo s/o Pandurang Khedkar v/s. Shahi Gupta Masjid Chandrapur, 2014(3) All MR 592.
8. At the outset, it is required to be noted that it was the Respondent No.1/original Appellant's own case before the School Tribunal that initially his qualification was B.Com.D.Ed when he was appointed as a junior clerk with effect from 02-08-1993 vide appointment order dated 25- Uday.P.Kambli 17/32 ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 01:51:13 :::
18/32 WP_4429_of_2001.doc 07-1993. The Appellant has averred in the Appeal that thereafter he was appointed as Assistant teacher in the school on regular basis from June 1994. It was his case that in addition to the work of Assistant teacher he was also asked to discharge duties as clerk. The same, however, is denied by the Management in their Written Statement. As a matter fact, they have stated in their Written Statement that the Appellant had left the post of clerk and requested the Management to appoint him as honorary Assistant teacher and to help him for getting admission to B.Ed. course and at that time one Khan was appointed as a clerk and thereafter one Asif Lagad, who was the relative of the Appellant was appointed as a clerk in place of Khan and the said Asif Lagad is working as clerk in the school and the said post is permanently occupied by him. The Appellant has himself stated in his Appeal that at the relevant time when he was appointed as Assistant teacher from June 1994, he was encouraged by the Respondents Nos. 1 to 13 for taking admission for his B.Ed. course to enable him to secure B.Ed. course and the Management had given undertaking on 01-01-1997 that the Appellant would continue to the post of Assistant teacher during his B.Ed. course and after completion of the B.Ed. course. He had accordingly, taken admission for part time B.Ed. course and completed his B.Ed. course in March 1999. Pertinently, in the Affidavit dated 11-12-2000 (at page 190 of the Petition) of the Appellant filed before the School Tribunal, he has stated in para (4) that at the Uday.P.Kambli 18/32 ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 01:51:13 ::: 19/32 WP_4429_of_2001.doc relevant time there were no funds available with the Institution and there were nobody available with the Institution to discharge the duty of Assistant teacher properly. Therefore, the Institution asked him to work as Assistant teacher and "directly" appointed him as Assistant teacher with assurance that they would issue him an order of appointment in due course. The Appellant has referred to the two order of appointment dated 29-09-1996 and 01-06-1997. The said appointment orders clearly state that the appointment of the Appellant is temporary and for a fixed period.
9. From the aforesaid, atleast three things are evident and can hardly be disputed, namely -
(I) that the Appellant was not duly appointed by following the prescribed procedure i.e. advertisement inviting applications, holding selection process, interview etc. (II) that at the time of appointment of the Appellant as Assistant teacher in 1994/1996, he did not have the requisite qualification of B.Ed. and he acquired B.Ed. degree only in March 1999. The Education Officer had not approved the appointment of the Appellant as Assistant teacher. (III) that the appointment orders state that the appointment of the Appellant as Assistant Teacher was temporary and for a fixed period.
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20/32 WP_4429_of_2001.doc 10.1 I shall first deal with Clause (I) of paragraph 9 above. Under section 5(1) of the MEPS Act, an appointment is required to be made in the manner prescribed. In the Written Statement the Management has denied that the Appellant was appointed on a regular basis. In Priyadarshani Education Trust and ors. v/s. Ratis (Rafia) Bano d/o Abdul Rasheed and ors., (supra), the Division Bench of this Court after referring to several judgments of the Supreme Court including that of Secretary, State of Karnataka v/s. Umadevi, 2006(4) SCC 1, held in paragraph 12 as follows:
"...In view of the provisions as contained in section 5 of the MEPS Act and Rule 9 of the MEPS Rules read with Articles 14 and 16 of the Constitution, and the observation of the Hon'ble Apex Court in the reported Judgment which guide us, we draw the following conclusions:
(i) Duly appointed in the manner prescribed, would be an appointment of a person who is eligible (qualified for the post) for appointment, who is selected by due process of selection i.e. by competition amongst all eligible and desirous candidates, and who is appointed on a permanent vacant post. In other words, inviting applications, as also holding of screening tests, enabling all eligible and desirous candidates to compete for selection and appointment, is a must...".
10.2 In the present case, it is an admitted position that the Appellant was working as a junior clerk and thereafter appointed as Assistant teacher 'directly'. The Appellant, therefore, obviously was not duly Uday.P.Kambli 20/32 ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 01:51:13 ::: 21/32 WP_4429_of_2001.doc appointed after following the prescribed procedure of issuing advertisement inviting applications, holding of screening tests, interview etc. It is admitted by the Appellant in paragraph 4 of his Affidavit dated 11-12-2000 filed before the School Tribunal (at page 190 of the Petition) that he was working as a clerk with the School and he was `directly' appointed as Assistant teacher as nobody was available in the School to discharge the duty of Assistant teacher properly. In these circumstances, I have no hesitation in concluding that the appointment of the Petitioner to the post of Assistant Teacher was not a valid appointment in the eyes of law.
11.1 I now come to Clause (II) of paragraph 9 (re qualification). Sub- section 1 of Section 5 of the MEPS Act mandates that the Management is required to appoint a person who is duly qualified. The qualifications are prescribed by Rule 6 and Schedule `B' of the 1981 Rules. B.Ed. degree is an essential qualification for being appointed as Assistant Teacher in a secondary school. In Datta Shelke Education Society and anr. v/s. Namdeo Shankar Patil and ors., (supra), a learned Single Judge of this Court has held that if an employee lacks requisite qualification for being appointed as an Assistant teacher and his services are terminated, then his initial appointment being contrary to law, he is not entitled to reinstatement in service. It is an admitted position that at the time of appointment of the Appellant as Assistant teacher in 1994 (as Uday.P.Kambli 21/32 ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 01:51:13 ::: 22/32 WP_4429_of_2001.doc claimed by him) he did not possess the requisite degree of B.Ed. and he acquired the qualification of B.Ed. only in March 1999. Thus, at the time of his appointment as Assistant teacher, the Appellant was not duly qualified.
11.2 The learned Single Judge of this Court in the aforementioned case of Datta Shelke Education Society has followed the decision in the case of Sanjay Lalbahadur Divedi v/s. Shrikrishna Vyayam Shala, (supra), wherein it has been observed by the learned Single Judge that if the essential educational qualification for recruitment to a post is not satisfied, ordinarily the same cannot be condoned and an appointment which is contrary to the statute/statutory rules would be void in law and such illegality cannot be regularized. The learned Single Judge further held that even after acquiring training qualification, for permanent selection and appointment on probation, the candidates have to compete with others. After getting B.Ed. qualification, it is not permissible to avoid competition with trained teachers when post is sought to be filled in permanently. In these circumstances, the Appellant in the present case admittedly not being qualified at the time of his appointment as Assistant Teacher, his appointment was clearly unlawful.
12.1 I shall now discuss Clause (III) of paragraph 9 (re temporary employment). Firstly it needs to be stated that once it is seen that an Uday.P.Kambli 22/32 ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 01:51:13 ::: 23/32 WP_4429_of_2001.doc appointment, whether temporary or permanent, is made without following the prescribed procedure, the appointment would be a backdoor entry and no protection of service can be granted to such an appointment. Even otherwise, assuming that a temporary appointment is made after following the prescribed procedure even then such temporary appointment cannot be granted protection. In the present case, it is stated by the Appellant himself in his Appeal before the School Tribunal that the appointment orders issued to him as Assistant Teacher were for one academic year. The appointment of the Appellant was thus a temporary appointment for a limited period. However, inasmuch as the Counsel for the parties have canvassed arguments and placed reliance upon judgments in that regard, I shall deal the law on the subject (though this issue really speaking need not be gone into, once it is seen that the appointment was a backdoor appointment.) 12.2 The issue whether a teacher/employee who has been appointed on temporary basis can claim protection of services, in that, whether he can claim that though he is appointed on temporary basis, his appointment is deemed to be on probation under the provisions of section 5 of the MEPS Act has been considered by various judgments of the Supreme Court as well as this Court including by a Full Bench. Uday.P.Kambli 23/32 ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 01:51:13 :::
24/32 WP_4429_of_2001.doc 12.3 In Hindustan Education Society and Anr. vs. Sk.Kaleem SK.Gulam Nabi and Ors. (1997) 5 SC 152, the Supreme Court has considered section 5 of the MEPS Act. In paragraphs 4, 5 and 6, the Supreme Court held as follows:
"4. Thus, it could be seen that the appointment of the first respondent was only a temporary appointment against a clear vacancy ... .
5. In view of the above and the order of appointment, the appointment of the respondent was purely temporary for a limited period. Obviously, the approval given by the competent authority was for that temporary appointment. As regards permanent appointments, they are regulated by sub- sections (1) and (2) of Section 5 of the Act according to which the Management shall, as soon as possible, fill up, in the manner prescribed, every permanent vacancy in a private school by appointment of a person duly qualified to fill in such vacancy. Every person of two years subject to the provisions of sub-section (4) and (5). He shall, on completion of the probation of period of two years, be confirmed.
i. Under these circumstances, the appointment of the respondent cannot be considered to be a permanent appointment. As a consequence, the direction issued by the High Court in the impugned judgment dated July 31, 1996 in writ petition No.5821/95 that he was regularly appointed is clearly illegal and cannot be sustained."
12.4 In Bharatiya Gramin Punanarrachana Sanstha vs. Vijay Kumar & Others, (2002) 6 SCC 707, the Supreme Court while considering the provisions of section 5 of the MEPS Act held that a plain reading of section 5(2) would show that it applies to a person who is put on probation consequent upon his appointment in a permanent vacancy. The Supreme Court held that it is clear that under sub-section (2), only Uday.P.Kambli 24/32 ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 01:51:13 ::: 25/32 WP_4429_of_2001.doc when an employee has completed successfully the probation period of two years, he shall be deemed to have been confirmed. The Supreme Court noted in that case that the order of appointment specifically mentioned that after expiry of the period of two years the services of the teacher would come to an end without any notice.
12.5 In a recent judgment in Pragati Mahila Samaj and anr. vs. Arun s/o Laxman Zurmure and ors. (supra), the Supreme Court followed the judgment in the case of Hindustan Education Society (supra). 12.6 In Ramkrishna Chauhan vs. Seth D.M. High School (supra), the Full Bench of this Court has also dealt with the very issue involved in the present Petition. The Full Bench was constituted by the Hon'ble the Chief Justice upon a reference being made by a learned Single Judge in view of the divergent opinions of different Benches of this Court. The Full Bench of this Court in its judgment in paragraph 2 has reproduced the question framed by the learned Single Judge which reads as follows:
"Would it be open to the School Tribunal to hold that an employee would be deemed to be on probation within the meaning of Section 5(2) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 on the ground that the appointment was made in a clear and permanent vacancy, notwithstanding the fact that the letter of appointment specifically stipulated that the appointment has been made in a temporary capacity?"
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26/32 WP_4429_of_2001.doc The Full Bench answered the question in paragraph 28 which reads thus:
"Accordingly, we are inclined to answer the issue in the negative. We hold that it is not open to the School Tribunal to assume as of fact that the appointment made against a clear and permanent vacancy is deemed to be on probation, within the meaning of section 5(2) of the Act. The School Tribunal cannot disregard the terms and conditions of the letter of appointment, if it expressly provides that the appointment is on temporary basis, for a limited term."
In paragraph 18, the Full Bench has observed:
i.A priori, we have no hesitation in taking the view that neither section 5(1) nor 5(2) of the Act can be construed as forbidding the Management from making an appointment on contractual or temporary basis for a limited duration against a permanent vacancy until a suitable candidate is selected. Further, there is nothing in these provisions to indicate that every appointment made by the Management, in relation to a permanent vacancy, must be deemed to have been made on probation for a period of two years. There is no such legal fiction unlike in the case of a person appointed "on probation" for a period of two years, is deemed to have been confirmed, upon completion of that period. In other words, the parties would be bound by the terms and conditions stated in the letter of appointment, as there can be no presumption of appointment having been made "on probation" unless expressly stated in the appointment letter itself."
In arriving at its conclusion, the Full Bench observed that it was bound by the exposition of the Apex Court in Hindustan Education Society and followed the said decision and the decision in the case of Bharatiya Gramin Sanstha.
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27/32 WP_4429_of_2001.doc 12.7 A learned Single Judge of this Court in the case of Mrs. Sneh Kohli vs. The Universal English Trust and others (supra) followed the decision of the Full Bench in Ramkrishna Chauhan. The learned Single Judge after discussing law of precedents did not agree with the view of another learned Single Judge (Nagpur Bench) in the case of Shamin Azad Education Society, Giroli and others vs. Presiding Officer, School Tribunal, Amravati and others (supra) and in the case of Abdul Rafique Abdul Hamid vs. Yevatmal Islamia Anglo Urdu Education Society and others (supra), wherein the learned Single Judge (Nagpur Bench) discussed what was the ratio and what was not the ratio in the judgment of the Full Bench. The learned Judge in Sneh Kohli held that he was bound by the judgment of the Supreme Court in the case of Hindustan Education Society (supra) and the Full Bench judgment of this Court in Ramkrishna Chavan and not the judgment of the learned Single Judge in Shamin Azad Education Society and Abdul Rafique Abdul Hamid which took a different view. The learned Single Judge observed that unless the Supreme Court takes a different view or the Full Bench decision is overruled by the Supreme Court he is unable to take a different view in the matter. It is noticed that the judgment of the Supreme Court in the case of Pragati Mahila Samaj (supra) and the judgment of the Division Bench of this Court in case of Pramod Satuppa Oulkar Vs. The Kini Karyat Shikshan Mandal and Uday.P.Kambli 27/32 ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 01:51:13 ::: 28/32 WP_4429_of_2001.doc ors. (LPA No.340 of 2007 decided on 22 August 2016), 2016 SCC OnLine Bom 9421, were not cited before the learned Single Judge which had also taken the same view.
12.8 In the aforementioned case of Pramod Satuppa Oulkar, the Di- vision Bench of this Court, following the case of Ramkrishan Chauhan, held in paragraph 16 as follows:
"16. The Full Bench of this Court in the case of Ramkrishna Chauhan (supra) has also clearly held that the terms and conditions of the letter of appointment are binding on the candidate and the Tribunal cannot presume that the appointment was made on probation. The contention of the learned counsel appearing on behalf of the appellant that section 3 read with section 5 is applicable is without any substance because the said section is in respect of appointment which is made on probation...".
12.9 In view of this exposition of law as discussed above, the Appellant being a temporary employee appointed for a fixed period, is not entitled to protection of his service.
13. It was sought to be argued before me that the present Writ Petition is not maintainable as the Respondents Nos.2 and 4 to 8-trustees are supporting the case of the Appellant and after the impugned order of the School Tribunal was passed in Appeal, the Management in its meeting held on 8 April 2001 has passed a Resolution that no Appeal or Writ Petition would be filed against the order of the School Tribunal and the Appellant would be allowed to resume duty and the order of the School Uday.P.Kambli 28/32 ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 01:51:13 ::: 29/32 WP_4429_of_2001.doc Tribunal be forwarded to the Education Officer to implement the same including that of back wages to be paid to the Appellant. It appears that accordingly the Appellant joined the duty on 25 April 2001 and the Head Master had communicated the same to the Education Officer vide his letter dated 25 April 2001 and made request to grant approval and to implement the order of the School Tribunal and the Education Officer vide his letter dated 30 May 2002 had granted approval in favour of the Appellant (which was later on withdrawn after filing of the present Petition). It is pointed out that out of 11 members of the Managing Committee, 7 members were present in the meeting held on 8 April 2001. It is submitted that the present Petition was filed as an afterthought as late as on 31 July 2001 and therefore the Petition would not be maintainable and the same is infructuous. It is however pertinent to note that the aforesaid contentions were raised before the learned Single Judge while admitting the present Petition (and before the Division Bench in LPA as stated hereinafter). However, the learned Single Judge of this Court granted interim relief and the operation of the impugned order of the School Tribunal was stayed, which order was confirmed by the Division Bench in LPA and the Review Petition against the order of the Division Bench in LPA was also dismissed. The Appellant has thus ceased to be in service at least since the passing of the interim order dated 12-08-2002 by the learned Single Judge. In these circumstances, Uday.P.Kambli 29/32 ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 01:51:13 ::: 30/32 WP_4429_of_2001.doc the plea of maintainability of the Petition on this ground would not be of much significance at this stage.
14. Even otherwise, it is not in dispute that some of the Petitioners who are trustees, were party-Respondents in the Appeal before the School Tribunal. In my view, in the facts and circumstances of the present case, where there is inter se dispute between trustees, the contention that since the majority of the trustees in the Managing Committee had resolved in the meeting not to challenge the impugned order cannot be countenanced. In a case like a present one, where illegalities are being pointed out, in that, the Management had made illegal appointment of the Appellant as Assistant Teacher under pressure and influence of the Respondent No.6, (as claimed before the School Tribunal by majority of Trustees) who is Vice President and father of the Appellant without following the prescribed procedure of advertisement inviting applications, holding screening tests, interview etc. and despite the fact that the Appellant was admittedly not qualified at the relevant time to be appointed as Assistant Teacher, this Court would not turn a blind eye to such illegality, merely because the Tribunal has overlooked the illegalities in the impugned order and merely because some of the Trustees have now taken a stand contrary to the stand taken before the School Tribunal. It would not be appropriate to throw out the case of the Petitioners, particularly at this stage of final hearing, on the ground of Uday.P.Kambli 30/32 ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 01:51:13 ::: 31/32 WP_4429_of_2001.doc non-maintainability considering that the interim order is operating for last more than one and half decade. Appointing a person by a backdoor method and who is not qualified and is untrained would ultimately have had an adverse effect on the students. Even assuming such resolution not to challenge the impugned order of the School Tribunal was passed by the majority of trustees, it would always be open for this Court to entertain the Petition at the instance of the other trustees, who were parties to the Appeal and who have brought forth the illegalities committed by the Management, which the School Tribunal has overlooked. In my view, the Court can lift the veil, if the facts and circumstances of the case so require, particularly when due procedure is not followed and appointments are made of persons who are untrained and not duly qualified merely because they happen to be kith and kin of the persons who control the management and affairs of the Trust. It is required to be noted that the post in question was an aided post and it was ultimately the public money which is involved. In view of the above discussion, it is not necessary to go into the contention of the Petitioners that the decision of the Managing Committee is ultimately required to be approved by the Trust as per the Constitution of the Trust. It is also not necessary to rule on the issue of the Appellant being a Commerce graduate and not an Arts/Science graduate and inadequacy of workload in the subject of Economics. In the facts and circumstances of the case, Uday.P.Kambli 31/32 ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 01:51:13 ::: 32/32 WP_4429_of_2001.doc the other judgments cited by the learned Counsel for the Respondents do not assist the case of the Respondents.
15. For all the aforesaid reason, the impugned order of the School Tribunal cannot be sustained and deserves to be set aside. It is accordingly set aside. Rule is made absolute in terms of prayer clause
(a). It is clarified that since the Appellant has obtained the requisite qualification and had served the institution earlier, it is left open to the Management to appoint the Appellant afresh, if so advised, on an unaided post and the Education Officer shall consider the appointment of the Appellant for approval on an unaided post sympathetically, if such proposal is received by him.
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