Bombay High Court
Anjuman-E-Ittehad-O-Tarqqi Trust & ... vs Jabeen Bano Khwaja Miyan Inamdar & Ors on 29 September, 2017
Author: A.A.Sayed
Bench: A.A. Sayed
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELALTE JURISDICTION
WRIT PETITION NO.7097 OF 2002
...
Anjuman-E-Ittehad-O-Tarqqi Trust
and anr. ...Petitioners
v/s.
Ms.Jabeen Bano Khwaja Miyan Inamdar
and ors. ...Respondents
...
Mr.S.A.Sawant for the Petitioners.
Mr.Nitin Sopan Parkhe for the Respondent No.1
Mr.A.R.Metkari, AGP for the State.
...
CORAM : A.A. SAYED, J.
DATED : 29 SEPTEMBER 2017
JUDGMENT:
The challenge in this Petition under Articles 226 and 227 of the Constitution is to the common judgment and order (in Appeals Nos.9 and 10 of 1998) dated 2 September 2002 passed by the School Tribunal, Pune Region, Pune. By the impugned judgment and order the Appeals of the Respondent No.1 and her colleague Ms.Gulnaz Bano Pathan respectively under section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (`MEPS Act' for short) were allowed and the otherwise termination of the Appellant (and Ms.Gulnaz Bano Pathan) was set aside and the Petitioner-Management/School were directed to reinstate the Respondent No.1 (and Ms.Gulnaz Bano Pathan) in Uday.P.Kambli 1/18 ::: Uploaded on - 05/10/2017 ::: Downloaded on - 07/10/2017 00:53:16 ::: 2/18 wp-7097-02.doc service with backwages. The connected Writ Petition No.7092 of 2002 has been filed by the Petitioner-Management challenging the very common judgment and order in relation to the reliefs granted in favour of Ms.Gulnaz Bano Pathan.
2. The case of the Respondent No.1 before the School Tribunal in her Appeal No.9 of 1998 was as follows:
(i) She was initially appointed in the Primary School i.e. Anjuman Primary School run by the Petitioner-Management on a temporary basis by order dated 30-08-1985. She was reappointed on the same post for the period from 02-12-1985 to 30-04-1986 by appointment order dated 29-11-
1985. Thereafter, again her services were extended without any break upto 7-10-1987. However, she was illegally terminated by letter dated 04-09- 1987 on the ground that she did not possess the necessary training qualification of D.Ed. She therefore filed an Appeal being Appeal No.159 of 1987,which was allowed by the School Tribunal and the order of termination dated 04-09-1987 was set aside and the Petitioner-Management was directed to reinstate her in service with backwages. She was accordingly reinstated as a primary teacher on 14-01-1988 (sic 09-02-1988). Thus, she was in service of the School initially from 30-08-1985 till December 1987 without any break. She has been in continuous service of the School for Uday.P.Kambli 2/18 ::: Uploaded on - 05/10/2017 ::: Downloaded on - 07/10/2017 00:53:16 ::: 3/18 wp-7097-02.doc more than 13 years. Since she was in service for more than 2 years on the post of permanent vacancy, she was a permanent teacher. She was teaching the students of 2nd standard on salary of Rs.150/- per month only.
(ii) The Secretary of the Petitioner-Management had assured her that she will be allowed to complete her D.Ed. Course and then will be allowed to sign the school muster only after getting the Government Educational grant, which they were not getting due to her not possessing D.Ed. qualification. She was therefore asked to wait for some time. Relying upon the assurance given by the Petitioner-Management, she continued with her job on negligible amount of salary despite her long service. After her reinstatement as per the order of the School Tribunal, she had duly applied in writing to the Petitioner-Management/Head Master for permission to complete her D.Ed. course by letter dated 13-01-1988. However, she was not permitted to complete her D.Ed. Course malafidely, despite forwarding the Application form for reconsideration on 20-01-1988. Though she was ready and willing to complete her D.Ed. course even on her cost, she was illegally deprived from completing the said course only with a view to terminate her services on the ground of her not possessing the training qualification.
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(iii) Despite the above, she was in continuous service of the School since Agust 1985 till the end of January 1993. However, after February 1993 till December 1997, she was not allowed to sign the muster book maintained by the School despite her attendance and rendering service. On the contrary, the Petitioner-Management appointed another teacher Mr.Kayyum on her post and she was asked to teach the students of 1 st and 2nd standards along with him. The then Secretary and the present Secretary had assured and promised her that after receiving the education grant from the Government, she will be allowed to complete her training course and to sign the muster book. However, even after getting the Government educational grant from 1995, the Petitioner-Management did not allow her to sign the muster book and she was restrained from teaching the students of the School from 28-12-1997.
(iv) Since she was otherwise terminated from service, she sent a legal notice dated 29-2-1997 to the Petitioner-Management/Head Master for reinstating her in service. She was appointed on a post of permanent vacancy and she cannot be terminated without show cause notice and her termination is illegal. On 14-2-1998, she was asked by the Petitioner- Management not to approach the Court and informed that a decision will be taken within one week. Therefore, she has not filed the Appeal immediately. Uday.P.Kambli 4/18 ::: Uploaded on - 05/10/2017 ::: Downloaded on - 07/10/2017 00:53:16 ::: 5/18
wp-7097-02.doc However, after lapse of one week from 14-02-1998, she contacted the Head Master on 24-02-1998, but the Petitioner-Management/Head Master refused to reinstate her.
3. A Written Statement dated March, 1999 was filed on behalf of the Petitioner-Management before the School Tribunal denying the contentions in Appeal. Their case in the Written Statement was as follows:
(i) The Appeal was time barred and no application for condonation of delay was filed. They are running primary and secondary schools viz.
Anjuman Primary School and Anjuman Secondary School and the institution is a minority institution under Article 30(1) of the Constitution of India. The Respondent No.1 was appointed on temporary basis by letter of appointment dated 07-06-1984 for a period of 11 months. She was then appointed on temporary basis during the academic year 1985-86. The particulars of the employment of the Respondent No.1 with the School were as follows:
Sr.No. From To Nature of
appointment
1. 31-08-85 01-05-86 Leave Vacancy
2. 16-06-86 07-10-87 In service
3. 08-10-87 08-02-88 Not in service
4. 09-02-88 13-10-90 In service
5. 05-11-90 04-12-90 Without pay
6. 05-12-90 03-05-91 Continued
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7. 29-01-92 01-03-93 Continued
(ii) The Respondent No.1 was not in service in the school on and from
02-03-1993. She remained absent from duty from 03-06-1991 to 28-01- 1992 without pay and leave. The Respondent No.1 was temporary employee as she was untrained teacher. She has not passed her D.Ed. Examination. The Petitioner-Management had received grant-in-aid as mentioned below:
Sr.No. Academic Year of grant in aid 1. 1990-91 25 2. 1991-92 50 3. 1992-93 75 4. 1993-94 100 It is not true that Respondent No.1 was teaching in the School till December 1997. They have not received any legal notice dated 29-2-1997 as alleged by her. She was untrained and temporary employee in the School till 03-09- 1990. She has abandoned her temporary employment and ceased to be an employee of the Petitioner-Management.
4. An Application for condonation of delay in filing the Appeal was thereafter filed by the Respondent No.1, wherein she has stated - after her reinstatement in the year 1988 till January 1993 she was serving in the Uday.P.Kambli 6/18 ::: Uploaded on - 05/10/2017 ::: Downloaded on - 07/10/2017 00:53:16 ::: 7/18 wp-7097-02.doc School. However, from February 1993 till 28 December 1997 she was allowed to teach 1st and 2nd standards students alongwith one other teacher Mr.Kayyum, but was not allowed to sign the muster on the ground that they are not getting educational grant. The Secretary of the Petitioner- Management by letter dated 01-11-1994 had asked her to continue her work as before and assured and promised her in writing that her services will not be terminated on the ground of non-possessing necessary qualification. Therefore, relying on the promise of the Petitioner- Management, she regularly taught the students, but from 28-12-1997 she was restrained from coming to the school and teach the children. Therefore, she had addressed a letter dated 29-02-1997 through her Advocate. On 14-01-1998, she had received a reply of the Petitioner- Management and therefore she personally approached them. However, the Petitioner-Management again asked her to wait for the decision of the Managing Committee and she should not file any Appeal. Relying upon the promise and request of the Petitioner-Management, she waited for the decision. However, on 24-02-1998, when she was informed of their decision not to reinstate her. She, therefore, filed the Appeal on 07-03-1998. She has not filed the Appeal immediately after 28-07-1997 only because of the assurance of the Petitioner-Management and therefore, the delay of 35 days in filing the Appeal was required to be condoned. Uday.P.Kambli 7/18 ::: Uploaded on - 05/10/2017 ::: Downloaded on - 07/10/2017 00:53:16 ::: 8/18
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5. A Reply to the Application for condonation of delay was filed by the Petitioner-Management denying the contentions of the Respondent No.1. It was stated in the Reply as follows- though the Appeal was filed as far back as in March 1998, it is only when they submitted an Application praying for framing an issue in respect of delay in filing the Appeal, that the Respondent No.1 came out with an Application for condonation of delay dated 9 March 2000 instead of filing the Application for condonation of delay alongwith the memo of Appeal. The Appeal could not have been numbered unless the delay was condoned. The Respondent No.1 was in their employment for certain broken periods purely on temporary basis. She was never in the employment after 01-03-1993 and the statement that she was in continuous service till 28 December 1997 was a blatantly lie. The so- called letter dated 01-11-1994 sought to be relied upon by her is not admitted. However, assuming without admitting any such letter was existing, then even in that case no such letter could be legal, proper and authentic on behalf of the Petitioner-Management/School. The alleged cause of action mentioned by the Respondent No.1 as 28 December 1997 is imaginary and therefore question of restraining her from continuing in the employment does not arise. The letter dated 29-02-1997 by her Advocate was duly replied by the Petitioner-Management.
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6. After hearing the parties, the School Tribunal passed the impugned order as stated in paragraph 1 hereinabove.
7. I have heard the learned Counsel for the Petitioner-Management, the learned Counsel for the Respondent No.1.
8. Learned Counsel for the Petitioner-Management has relied upon the following judgments:
(i) Shaikh Jamalchand v/s. Maharashtra Seva Sangh & ors.
2010 (5) Bom.C.R. 393;
(ii) Priyadarshini Education Trust v/s. Ratis (Rafia) Bano d/o Abdul, 2007 (6) Mh.L.J. 667;
(iii) Bhartiya Adiwasi Shiv Shikshan Sanstha & ors. v/s. Premdip Sahdeo Bodele and ors., 2010 (6) Mh.L.J. 461;
9. Learned Counsel for the Respondent No.1, on the other hand, has relied upon the following judgments:
(i) Maulana Azad Educational Trust & ors. v/s. Uzama Khanam Mirza Moin Ullah Baig & Anr., of the learned Single Judge, Aurangabad Bench in Writ Petition No.8837 of 2015 (decided on 8-12-2015);
(ii) Shri Ekveera Devi Sanskrutik Mandal v/s. State of Uday.P.Kambli 9/18 ::: Uploaded on - 05/10/2017 ::: Downloaded on - 07/10/2017 00:53:16 ::: 10/18 wp-7097-02.doc Maharashtra, 2002 (3) Bom.C.R. 177;
(iii) Satish Balkrishna Mule v/s. Shri M.V.Chaskadbi, (1988) 90 Bom.L.R. 272;
(iv) Deepali Gundu Surwase v/s. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.), (2013) 9 SCR 1;
10. At the outset it is required to be noted that there was an earlier round of litigation between the parties when the Respondent No.1 had challenged her earlier termination order dated 04-09-1987 on the ground that she was not duly qualified by filing Appeal No.139 of 1987. By a common judgment and order dated 17-12-1987, the termination order dated 04-09-1987 was set aside and the Petitioner-Management was was directed to reinstate the Respondent No.1 (and Ms.Gulnaz Bano Pathan) in service with backwages from the date of her termination. The Petitioner-Management, however, chose not to challenge this judgment and order. The Respondent No.1 was thereafter reinstated in service on 09-02-1988 by the Petitioner- Management. Here, reference may be made to section 12 of the MEPS Act. It reads as under:
"12. Decision of Tribunal to be final and binding:
Notwithstanding anything contained in any law or contract for the time being in force, the decision of the Tribunal on an appeal Uday.P.Kambli 10/18 ::: Uploaded on - 05/10/2017 ::: Downloaded on - 07/10/2017 00:53:16 ::: 11/18 wp-7097-02.doc entertained and disposed of by it shall be final and binding on the employee and the Management: and no suit, appeal or other legal proceeding shall lie in any Court, or before any other Tribunal or authority, in respect of the matters decided by the Tribunal."
Thus, in view of section 12 of the MEPS Act reproduced above, it cannot be disputed that the judgment and order dated 17-12-1987 of the School Tribunal was binding upon the Petitioner-Management.
11. Though the Petitioner-Management have in their Written Statement alleged that the Respondent No.1 was never in employment after 01-03-1993, this is clearly belied by the fact that by letter dated 01-11-1994 written by the Secretary of the Petitioner-Management. In the said letter it was inter alia stated that she was reappointed from time to time after the order of the School Tribunal and she was a permanent teacher and considering her long service she will be allowed to appear and complete her D.Ed. Course and that her services will not be terminated. It would be apposite to reproduce the said letter dated 01-11-1994. It reads as follows:
"ANJUMAN-E-ITTEHAD-O TARAQQI TRUST Correspondence Address Regd.Office M.Shaikh 57, Temkar Streets, S.B.G.Street, (Telly Mohalla), 1st floor, Bombay- 400 008 Date: 1-11-1994 Uday.P.Kambli 11/18 ::: Uploaded on - 05/10/2017 ::: Downloaded on - 07/10/2017 00:53:16 ::: 12/18 wp-7097-02.doc BY HAND DELIVERY To:
1. Miss Jabeen Bano Khwaja Miyan Inamdar, Junner Dist: Pune, Junnar
2. Miss Gulnazbano Dost Mohd. Khan, Sipoy Mohalla, Junnar, Dist: Pune Madam, I have pleasure to inform you that as decided by the Management you and Miss Gulnaz Bano are re-appointed from time to time after order of Education Tribunal and therefore decided to allow you to complete training qualification i.e. D.Ed.
Course. I have to inform you that we could not allow you both to complete D.Ed. Training Course. However, I hereby assure you both considering your long service that we will allow you to appear for and complete your D.Ed. Training qualification course as you both are our permanent teachers.
Therefore continue your job as before. We will not terminate your services on ground of untrained Teachers or on ground of not possessing necessary qualification. The decision, if any changed will be informed in proper course.
Thanking you, Yours faithfully, Sd/-
Secretary Anjuman-e-Ittehad-O Taraqqi Trust"
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wp-7097-02.doc Pertinently, in the Reply to the Application for condonation of delay of the Respondent No.1, it is averred by the Petitioner-Management- `the said letter dated 01-11-1994 is not admitted, however, even if such letter is existing, the same was wrongly written by the Secretary without authority of law'. Before this Court it is not disputed that such letter was infact written, however, it is reiterated that the same was written without the authority of the Management. The contention is rather curious and cannot be countenanced and the said contention was rightly rejected by the School Tribunal. The Petitioner-Management has evidently not come clean. In these circumstances the discretion exercised by the School Tribunal in condoning the delay in filing the Appeal of the Respondent No.1 accepting that the cause of action had arisen on 28-12-1997 is not liable to be interfered. Inasmuch as the Petitioner-Management has proceeded with the hearing of the Appeal before the School Tribunal without insisting that the Application for condonation of delay of the Respondent No.1 be decided first, I am not inclined to accept their technical plea that the Application for condonation of delay in filing the Appeal ought to have been filed and decided earlier.
12. The contention that the School was a minority institution under Article 30(1) of the Constitution has not been urged before the School Tribunal. In Uday.P.Kambli 13/18 ::: Uploaded on - 05/10/2017 ::: Downloaded on - 07/10/2017 00:53:16 ::: 14/18 wp-7097-02.doc any event no Certificate of the School being a minority institution has been relied upon or produced. Hence, this contention is also rejected.
13. The Respondent No.1 has been in service of the School from the year 1985. As indicated earlier, she was appointed on temporary basis from time to time for about three years and thereafter her services were terminated in September 1988 on the ground that she did not possess the requisite qualification of D.Ed. degree. She had therefore to approach the School Tribunal by filing an Appeal. She succeeded in the Appeal and her termination was set aside and the Petitioner-Management was directed to reinstate her (and her colleague Ms.Gulnaz Bano Pathan) with backwages vide common judgment and order dated 17-12-1987. The record including the letter dated 01-11-1994 bears out that the Petitioner-Management did not allow the Respondent No.1 to complete the D.Ed. Course, which was a requisite qualification for the Respondent No.1 to continue teaching in the Primary School. In the said letter dated 01-11-1994 the Petitioner- Management stated that the Respondent No.1 was a permanent teacher and she would be allowed to complete her D.Ed. Course and that her services will not be terminated. Notwithstanding the said letter and assurances, her services were terminated. In my view, the conduct of the Petitioner-Management clearly spells out that they have exploited the Uday.P.Kambli 14/18 ::: Uploaded on - 05/10/2017 ::: Downloaded on - 07/10/2017 00:53:16 ::: 15/18 wp-7097-02.doc Respondent No.1.
14. Notwithstanding my above observations, it cannot be overlooked that the Respondent No.1 does not possess the requisite qualification of D.Ed. The judgment of the Division Bench of this Court in the case of Shaikh Jamalchand (supra), which holds that a teacher who does not possess the requisite qualification cannot claim protection of service and seek reinstatement, supports the case of the Petitioner-Management. The judgment in the case of Priyadarshini Education Trust (supra) on the issue of backdoor entry would not come to the rescue of the Petitioner- Management as in the present case the Respondent No.1 had in the earlier round of litigation approached the School Tribunal which vide order dated 17-12-1987 directed reinstatement of the Respondent No.1 and the Petitioner-Management had not challenged the said order dated 17-12- 1987.
15. It would be apposite to now refer to section 11 of the MEPS Act. It reads as follows:
"11. Powers of Tribunal to give appropriate reliefs and directions. - (1) On receipt of an appeal, where the Tribunal, after giving reasonable opportunity to both parties of being heard, is satisfied that the appeal does not pertain to any of the Uday.P.Kambli 15/18 ::: Uploaded on - 05/10/2017 ::: Downloaded on - 07/10/2017 00:53:16 ::: 16/18 wp-7097-02.doc matters specified in section 9 or is not maintainable by it, or there is no sufficient ground for interfering with the order of the Management it may dismiss the appeal.
(2) Where the Tribunal, after giving reasonable opportunity to both parties of being heard, decides in any appeal that the order of dismissal, removal, otherwise termination of service or reduction in rank was in contravention of any law (including any rules made under this Act), contract or conditions of service for the time being in force or was otherwise illegal or improper, the Tribunal may set aside the order of the Management, partially or wholly, and direct the Management,-
(a) to reinstate the employee on the same post or on a lower post as it may specify;
(b) to restore the employee to the rank which he held before reduction or to any lower rank as it may specify;
(c) to give arrears of emoluments to the employee for such period as it may specify;
(d) to award such lesser punishment as it may specify in lieu of dismissal, removal, otherwise termination of service or reduction in rank, as the case may be;
(e) where it is decided not to reinstate the employee or in any other appropriate case, to give to the employee twelve months' salary (pay and allowances, if any) if he has been in the service of the school for ten years or more and six months' salary (pay and Uday.P.Kambli 16/18 ::: Uploaded on - 05/10/2017 ::: Downloaded on - 07/10/2017 00:53:16 ::: 17/18 wp-7097-02.doc allowances, if any) if he has been in service of the school for less than ten years, by way of compensation, regard being had to loss of employment and possibility of getting or not getting suitable employment thereafter, as it may specify; or
(f) to give such other relief to the employee and to observe such other conditions as it may specify, having regard to the circumstances of the case.
(3) ...
(4) ..."
16. In my view considering the fact that the Respondent No.1 did not hold the requisite qualification of D.Ed., it would not be appropriate to reinstate her in service. It is noticed that this Court had, after filing of the Petition, stayed the operation of the impugned order of the School Tribunal and the Respondent No.1 is not in service for the last about 15 years. Considering the facts and circumstances of the case and since the Respondent No.1 was terminated despite there being an order of the School Tribunal in her favour and since the Respondent No.1 was admittedly not holding the requisite qualification of D.Ed., in my view, interest of justice would be served if the Petitioner-Management are directed to pay to the Respondent No.1 six months salary (present scale) as compensation in lieu of reinstatement as contemplated under the provisions of section 11(2)(e) & (f) Uday.P.Kambli 17/18 ::: Uploaded on - 05/10/2017 ::: Downloaded on - 07/10/2017 00:53:16 ::: 18/18 wp-7097-02.doc quoted above.
17. In light of the above discussion, I pass the following order:
ORDER
i) The Petitioner-Management is directed to pay the Respondent No.1 six months' salary (gross salary at present scale payable to Primary Teacher in Government aided Primary School) within a period of eight weeks from today as compensation in lieu of reinstatement. It is clarified that there shall be no deduction on the said amount and it would be net of Tax.
ii) The impugned order of the School Tribunal shall stand modified accordingly.
iii) Rule is made partly absolute in the aforesaid terms.
18. The Petition is disposed of accordingly. There shall be no order as to cost.
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