Bombay High Court
Ku. Jaimala Bhaurao Ramteke vs Presiding Officer on 30 April, 2009
Author: S.R.Dongaonkar
Bench: S.R.Dongaonkar
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 5413/2008
Ku. Jaimala Bhaurao Ramteke,
aged about 42 years, Occupation -
Assistant Teacher, Saraswati Purva
Madhyamik School, Koka (Jungle),
Tahsil and District : Bhandara,
R/o. Koka, Distt. Bhandara
...PETITIONER
...versus...
1.
Presiding Officer, School Tribunal,
Nagpur.
2. Preeti Shikshan Sanstha, Bhandara,
through its Secretary - Shri B.D.
Bhaladhar, resident of Bhandara,
Tahsil and District : Bhandara.
3. The Education Officer (Primary),
Zilla Parishad, Bhandara,
4. The Headmaster, Saraswati Purva
Madhyamik School, Koka (Jungle),
Tah. & Distt. Bhandara ..RESPONDENTS.
======================================
Shri A.S.Mardikar, Adv. for the petitioner,
Shri A.S. Sonare, APP, for Respondent Nos.1 & 3
Shri A.Z.Jibhkate, Adv. for Respondent Nos. 2 & 4
======================================
CORAM : S.R.DONGAONKAR, J.
th
JUDGMENT RESEVED ON : 4 APRIL, 2009.
th
JUDGMENT PRONOUNCED ON : 30 APRIL, 2009
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2
JUDGMENT
1. Shri A.S.Mardikar, Adv. for the petitioner, Shri Sonare, APP, for Respondent Nos.1 & 3 and Shri A.Z.Jibhkate, Adv. for Respondent Nos. 2 & 4 Rule.
Made returnable forthwith. Heard finally with the consent of the parties.
2. The petitioner herein seeks to challenge the order passed by the School Tribunal, Nagpur, in Appeal No. STC/26/01, dated 10th December, 2008, by which her appeal under Section 9 of the M.E.P.S. Act was dismissed.
3. The facts leading to this petition can be briefly stated thus The petitioner was working as a teacher in the school run by Respondent Nos. 2 & 4. Respondent No.2 is a registered Education Society. Respondent No.2 runs respondent no. 4 School.
It is contended that same is run on "grant-in-aid" basis. The petitioner was appointed as an Assistant Teacher by Respondent No. 2 as she was qualified teacher. She was selected and appointed and ::: Downloaded on - 09/06/2013 14:34:02 ::: 3 was directed to join her duties w.e.f. 1.12.1997 initially. Her name was incorporated in the muster-roll. On 1.6.1998, she was appointed on probation w.e.f. 1.6.1998 to 30.5.2000. The proposal of such appointment was submitted to the Education Officer-
Respondent no.3. It is alleged that she was appointed on probation for a period of two years as stated in her appointment order. It is further contended that she had unblemished service throughout.
Her work and behaviour was good. There were no adverse communications issued by her during her service. Another appointment order was issued by the respondent management stating that her services are continued from 5.7.2000 to 30.4.2001.
It is alleged that as the petitioner had completed her probation period satisfactorily on 30.5.2000, her services become permanent and she had acquired a status of "permanent employee". Therefore, according to her, her services could not be terminated by giving one month notice. According to the petitioner, her services were liable for termination only after due inquiry and by following mandatory provisions of Rule 33 to 37. Therefore,the termination order issued to the petitioner, dated 28.03.2001 having effect from 30.4.2001 was illegal and bad in law. She, therefore. challenged this termination order in her appeal under Section 9 of the M.E.P.S. Act.
::: Downloaded on - 09/06/2013 14:34:02 ::: 44. The Education Officer - respondent no.2 herein, filed reply in the said appeal. It was not denied that the respondent management had submitted the proposal to the Education Officer for approval to the appointment of the petitioner. The said approval was granted on 1.7.1998 for two years of probation. According to the Education Officer, she was senior-most teacher and therefore, as she had completed her probation period and there was no inquiry pending against her, her termination, as was done by the respondent management; was illegal. Therefore, the Education Officer (Primary), Zilla Parishad, Bhandara, supported the case of the petitioner and claimed that he is not responsible for the termination of the petitioner.
5. Respondent nos. 2 & 4 herein, filed a reply in the said appeal proceedings and admitted that the said school is run by the respondent Society. It was contended that recognition to the said school was granted by the Education Department on year to year basis. As at the relevant time, the recognition to the school was granted on year to year basis, there was no question of appointment of any teacher for two years, even on probation. According to these respondents, Education Officer first time granted recognition with "grant-in-aid" on 1.7.1998. It was granted only till 30.6.1999.
::: Downloaded on - 09/06/2013 14:34:02 ::: 5Thereafter again it was granted from 1.7.1999 to 30.6.2000. Last order regarding recognition was for the period 1.7.2000 to 30.6.2001. Further order of recognition for the session 2001-2002 was not received (at the time of filing of that reply) and therefore, the petitioner could not get a status of "permanent employee". It was also contended that termination order issued to the petitioner was issued after following the due procedure and by due compliance of the mandatory provisions of the Act and Rules. It was also submitted that such recognition was granted on year to year basis, so the petitioner could not have been appointed for more term than the term of recognition. According to these respondents, the petitioner could not get the status of "permanent employee", except otherwise than proper appointment on probation for the relevant period as required under Section 5(2) of the M.E.P.S. Act.
Therefore, according to these respondents,the petitioner was absolutely a temporary employee and her services could rightly terminated as per the order that was issued.
6. The learned Presiding Officer, School Tribunal framed necessary points for determination and gave finding that the school was recognized under the M.E.P.S. Act. He, however, found that the appointment of the petitioner was not properly made in terms of ::: Downloaded on - 09/06/2013 14:34:02 ::: 6 Section 5 of the M.E.P.S. Act and relevant M.E.P.S. Rules. Therefore, he found that the termination order issued to the petitioner dated 28.3.2001 impugned in the appeal was not illegal and improper. As such, he dismissed the appeal of the petitioner.
7. The petitioner challenges that order int his petition under Articles 226 & 227 of the Constitution of India.
8. Learned counsel for the petitioner Shri Mardikar has submitted that the first appointment of the petitioner was in the year 1997. Her initial appointment was till 30.4.1998. She was again appointed for the period from 1.6.1998 to 30.5.2000, this time; on probation for two years. Her appointment and service was continued even after 30.5.2000 until further orders. She was given some financial powers as well as a charge of headmistress. She was, however, terminated by the notice dated 28.3.2001, w.e.f.
30.4.2001, the order which was challenged before the School tribunal. She was protected by an interim order thereafter. The said order was continued till 10.12.2008 i.e. The disposal of the appeal of the petitioner. On filing the petition, the 'status quo' was ordered by this Court and order was continued for quite some time.
According to the petitioner, however, later on she was not allowed ::: Downloaded on - 09/06/2013 14:34:02 ::: 7 to continue in service. In this context, it is necessary to note; at this stage, the respondents had submitted that she was relieved from service on 11.12.2008, itself, at 11 a.m. i.e immediately after the order of the School Tribunal, and before this Court had passed an order of status quo. The petitioner prayed to rectify the things by this Court. It was ordered by this Court on 15.1.2009 that this aspect shall be considered at the time of final orders in the petition.
To continue with the submissions made by the learned counsel for the petitioner, it can be stated that, according to the learned counsel, the termination of the petitioner was totally illegal as she was appointed on probation and after satisfactory completion of the probation period, she could not have been terminated without proper inquiry and by following due procedure laid down under M.E.P.S. Act as well as Rules. The management/respondent cannot go back and say that the appointment of the petitioner on probation could not have been made as such and therefore, the management could not take advantage of its own wrong. According to the learned counsel for the petitioner, as the petitioner was granted financial and administrative powers and also she was appointed as headmistress for quite some time, it was clear that she had continued in service on satisfactory completion of the probation period and therefore, her services could not have been dispensed ::: Downloaded on - 09/06/2013 14:34:02 ::: 8 with; as done in this case. He has relied on certain authorities to contend that the services of the petitioner could not have been terminated except by following due procedure, once she had attained the status of permanent employee after completion of the period of probation. The satisfactory completion of the probation period could be inferred from conferring of financial powers and charge of headmistress on her. According to him, the appointment of the petitioner was properly made by following due procedure and therefore, recognition of the school on year to year basis will not make any difference. As such, according to him, the order of termination was totally illegal. The School tribunal should have not dismissed the appeal of the petitioner. Therefore, according to him, the judgment impugned in this petition is liable to be set aside and appeal of petitioner should be allowed. I would discuss the authorities referred by him at the appropriate place during the course of this judgment.
9. Learned AGP Shri Sonare for the Respondent No. 1 & 3 -
Education Officer has contended that the Education Officer is supporting the case of the petitioner inasmuch as approval was granted by the Education Officer for the appointment of the petitioner on probation. She had successfully completed the ::: Downloaded on - 09/06/2013 14:34:02 ::: 9 probation period and therefore, she had acquired a status of permanent employee. Thus, according to him, the petition need to be allowed by setting aside the impugned order.
10. Per contra, the learned counsel Shri Jibhkate, for the respondent Management & School has submitted that once the appointment is not valid and in accordance with rules under M.E.P.S. Act & relevant Rules, the appointment can not be considered as valid appointment in any case and the employee can not get advantage of such wrong/irregular appointment. In that case, the management can take a stand that appointment is not at all valid and in accordance with the Rules & therefore, it does not confer any status of permanent employee on the concerned employee. And in the present case, the petitioner was not appointed on the post of teacher on probation in pursuance to the relevant provisions of law and the Rules and therefore, when the parties, including the petitioner have acted contrary to the rules, the illegal appointment can not be regularized by the in action on the part of the management or even because of approval granted by the Education Officer. He has also relied on certain authorities in this behalf. According to him, the management is not estopped from contending that the appointment of the petitioner was not legal. In ::: Downloaded on - 09/06/2013 14:34:02 ::: 10 such illegal appointments, the management can disown their liabilities. As regards issue of regular and proper and thorough following mandatory procedure appointment of the petitioner, learned counsel has submitted that this issue was not at all raised before the School Tribunal and the petitioner now can not raise a issue that advertisement was given, applications were called and after due selection procedure, she was appointed on the permanent post of teacher on probation. Therefore, according to him, once the appointment is held to be not in consonance with Section 5 of the M.E.P.S. Act & relevant Rules, the petitioner can not be heard of saying that her appointment should be treated as an appointment on probation in the vacancy of permanent post. He has relied on some authorities in this regard, which I would discuss in the course of judgment.
11. In order to appreciate the controversy in the matter, two authorities of this Court need to be referred as to the dealing with preliminary issues to be considered by the School Tribunal while deciding the appeals under Section 9 of the M.E.P.S. Act. The important decision of this Court in this regard is 1997 (3) Mh.L.J. 697; Anna Manikrao Pethe vs. Presiding Officer, School Tribunal, Amravati and Aurangabad Division, Amravati and ::: Downloaded on - 09/06/2013 14:34:02 ::: 11 others, wherein it was held, "when applications under section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, are filed before the School Tribunals by the teachers challenging any act of termination on the part of the management, it will be necessary for the Tribunal to frame and decide three preliminary issues, viz., whether the school was a recognised school as defined under the M.E.P.S. Act; whether the appointment of the concerned teacher was made as per section 5 of the M.E.P.S. Act and the Rules thereunder; and whether such an appointment has been approved by the Education Officer in pursuance of the provisions of the Act as well as the Rules framed thereunder including the Government Resolutions issued from time to time regarding reservations etc. These preliminary points are required to be framed and decided before the appeal proceeds on merits and even if such points are not raised by any of the parties to the appeal, it would be proper on the part of the tribunal to frame such issues suo motu before examining the merits of the case. In case the findings to any of the preliminary issues are in the negative, the appeal must fail then and there itself, so far as the relief of reinstatement/continuation in service is concerned.
It is mandatory on the part of the School Tribunal to consider these 3 preliminary issues before deciding the matter on merits i.e. (I) whether the school was recognized school as defined under the M.E.P.S. act; (II) whether the appointment of the concerned teacher was made as per Section 5 of the M.E.P.S. act and Rules thereof & (III) Whether such appointment has been proved by the Education Officer in pursuance of the provisions of the Act as well as Rules ::: Downloaded on - 09/06/2013 14:34:02 ::: 12 framed thereunder including the G.R. issued from time to time regarding reservation etc."
I have pointed out above, what the School Tribunal has held by the impugned judgment.
12. This judgment was considered by the Full Bench of this Court again in 2007 (1) Mh.L.J. 597; St. Ulai High School and another vs. Devendraprasad Jagannath Singh and another. The effect of approval by the Education Officer to the appointments of the teacher was considered to be an issue which need not be considered by the Court, as the grant of approval by the Eduction Officer was not held to be condition precedent to a valid order of appointment. It is obvious, therefore, that the School Tribunal has to consider remaining two issues as preliminary issues as a condition precedent before going into the merits of the appeal under Section 9 of the M.E.P.S. Act.
13. In the present case, it is not disputed, rather is established that the School was recognized only on year to year basis during the relevant period by the Government. Therefore, the appointment of the teachers could have been approved by the Education Department only for the particular years during which ::: Downloaded on - 09/06/2013 14:34:02 ::: 13 there was valid recognition. This aspect assumes importance in the present case.
14. At this stage, I would like to refer the authorities relied by the learned counsel for the petitioner.
He has relied on the unreported judgment of this Court in Writ Petition No. 5774/2007 Shikshan Prasarak Mandal vs. Ku.
Varsha Pundlikrao Mandhare and others, particularly following observations;
"Having considered the rival submissions and having perused the record, I find no merits in the petition. The approval to the services of the respondent no.1 was granted by the Education Officer which has become final in the absence of any challenge by the petitioner. Mr. Naik is right in contending that there is presumption that the approval has been granted by the Education Officer by following the Rules. Hence, I find no force in the contention of Mr. Khapre that the appointment of respondent no.1 was not in terms of the Rules. The Respondent no.1 having been appointed on probation by following the Rules the petitioner could not have been terminated her services on the ground that she was appointed to the post reserved for SC, ST or NT candidate, and, therefore, she was not eligible to be appointed."
He has also relied on the judgment of this Court reported in 2009 (1) Mh.L.J. 796; Nita Ramesh Danane vs. Dombivali Mitra Mandal and others, particularly paras 10, 11 & 12, which are thus--
::: Downloaded on - 09/06/2013 14:34:02 ::: 14"10. In my opinion, the submission of the learned counsel for the respondents cannot be accepted for more than one reason. A plain reading of the letter dated 22.9.1993 indicates that the appointment is made on probation for a period of two years. The M.E.P.S. Rules required appointment order to be issued in a particular manner. Once such an appointment order is issued, the management cannot by means of a so-called agreement reduce the terms of appointment or change the nature of the status of the employee.
11. Neither the M.E.P.S. Act nor the Rules framed thereunder contemplate any agreement between the management of the school and an employee in respect of the appointment and the status of the employee. Therefore, in my view, it would be held that the so- called agreement which has been purportedly signed by the parties on 20.9.1994 has no effect in law and cannot be discharged from service on the basis of such an agreement. Besides, the contention that the petitioner was appointed against a reserved category post, is also without merit. There is no condition in the appointment letter that the appointment was being made against the reserved category post or that the appointment was only for a temporary period, till such time as a suitable candidate from the reserved category was available.
12. In these circumstances, the submission of the learned counsel for the respondents that the appointment was for a temporary period cannot be accepted. There can be no doubt that the appointment was on probation and, therefore, the petitioner would be deemed to be permanent after completion of two years in service i.e. from 6.10.1995. There is no material on record to indicate that during the period of probation the behaviour or work of the petitioner was not upto the mark. Apart from this, the question of the petitioner being appointed against a reserved category post does not ::: Downloaded on - 09/06/2013 14:34:02 ::: 15 arise. The post to which the petitioner was appointed was that of a Librarian which is an isolated post. There is no pleading in the written statement that the institution was running more than one school and that, therefore, the post was not an isolated post."
He has also relied on the judgment of this Court reported in 2007 (2) Mh.L.J. 105; President, Mahila Mandal, Sinnar and another vs. Sunita Bansidhar Patole wherein it has been held that "once it is clear that the post wherein the employee was appointed was not a permanent vacancy, unless it is specifically disclosed by the Roster that the same was meant to be filled in by appointment of a reserved category candidate, the provisions of Section 5(1) of the M.E.P.S. Act are clearly attracted".
He has further relied on the judgment reported in 2007 (6) Mh.L.J. 563, Hindi Vidya Bhawan, Mubmai and others vs. Presiding Officer, School Tribunal Mumbai & others, wherein in para 35, it has been observed thus-
"35. If the scheme under sections 4, 5 9 and 11 of the Act in particular are put together and kept in view, it clearly follows that the entire procedure including conditions of service in a private school has been provided for by this Special Legislation and there is no need to fall back upon the general principles laid down by the judgments of the Supreme Court and High Courts while dealing with cases under the other Acts more particularly when the provisions of the special Act are plain, clear and require no aid for its interpretation from outside. The provisions/scheme of the Act is clear and needs no aid from outside. When the ::: Downloaded on - 09/06/2013 14:34:02 ::: 16 Legislature provides a special statute, as the present, to cover a given situation, there is an obligation on the institution while employing members of the staff to follow the procedure and then obtain the protection which the law intends to confer. The petitioners who had failed to follow the procedure for appointing the respondent-employees cannot obtain protection under the Act and refuse to make them permanent. Similarly, if the proposition canvassed by the petitioners that the tribunal could not have decided the issue of relationship between the appellant and the institution, as employer and employee, in the appeal under section 9 of the Act, no appeal would proceed on merits before the tribunal The institutions would frustrate the remedy of appeal by taking such a defence/stand in every matter.
Again he has relied on the unreported judgment of this Court in Writ Petition No. 2559 of 2001, wherein it has been observed thus-
".....The argument made before this court was that the School was getting the recognition from 1989 on yearly basis and, therefore, appointment of Respondent no.2 can not said to be permanent. According to me, once it is admitted that the School had recognition for the years 1989 till 1993, which fact is not disputed, the mere fact that the recognition was from year to year basis would have no bearing on the question as to whether the initial appointment of Respondent no.2 was permanent or temporary. It can be seen from the appointment order itself that the appointment was for a period of two years on probation. Under Section 5 of the M.E.P.S. Act, the employee appointed on probation, on completion of his probation, is deemed to have been confirmed. The reliance was also placed on Rule 16 of the Maharashtra Employees of Private Schools (Condition of Service) Rules, 1981. Once it is held that on completion of probation period, respondent No. 2 became permanent, rule 16(2) , which proves that a ::: Downloaded on - 09/06/2013 14:34:02 ::: 17 non-permanent employee shall be deemed to have abandoned service, will have no bearing or applicability to the facts of the present case."
And the judgment of this Court reported in 2009(2) Mh.L.J. 121 Matoshri Ramabai Ambedkar Vidyarthi Vasatigruh Trust and another vs. Bharat D Hambir and another, wherein it has been observed in para 5A thus--
"5A. Of late, there is a growing tendency of managements of private schools to appoint temporary employees from year to year, even though the vacancy is permanent and an adequate work load is available. This leads to grave uncertainty for teachers and places them at a mercy of the managements. The temporary appointment of a teacher who questions unethical practices of the management is promptly terminated. He or she who questions is cast away. Those who turns a blind eye or worse, become willing participants in a pattern of exploitation, are retained. This is a perversion of what was intended by the State legislation enacted in 1977. Placing teachers in a state of eternal uncertainty is destructive of the cause of education. In numerous cases before this Court, the grievance is that teachers of aided institutions are being subjected to extortionate demands by unscrupulous managements. Education has become a business and management of private schools, with notable exceptions, are becoming pirates in the high seas of education. The interpretation of section 5 of the Act must be purposive - one that would attain the statutory object and not lead to negation of statutory intent. Once a permanent vacancy arises, a management is duty bound statutorily to fill it up by appointment a duly qualified candidate or candidates. A regular process of selection must be held. A duly qualified candidate has to be appointed. Temporary appointments can by definition be made when the vacancy is temporary. In such cases, the exigencies of education require that students must be imparted education and a vacancy even for a short period will cause serious hardship. But temporary appointments are in exception. Making temporary appointments the rule is to give a tool of subversion to the hands of unethical managements. Temporary appointments, followed as a practice become a tool ::: Downloaded on - 09/06/2013 14:34:02 ::: 18 of subversion because they perpetuate a region of uncertainty about service, place the teacher in a position of perpetual fear and deprive the teacher of the stability needed to contribute to the process of moulding young minds. This Court must emphasis with all the authority at its command that a subversion of statutory intent should not be allowed. The Court will not allow itself to be a mute by stander to the growing trend of a lack of ethics in the management of private schools. Judicial intervention is warranted in order to preserve the statutory intent."
I have considered the authorities referred by the learned counsel for the petitioner.
15. As against this, the learned counsel for Respondent Nos.
2 & 4 has relied on following authorities, viz.--
(1) 2007(6) Mh.L.J 563; Hindi Vidya Bhavan, Mubmai and another vs. Presiding Officer, School Tribunal, Mumbai and others.
(2) 1997 (3) Mh.L.J.697; Anna Manikrao Pethe vs. Presiding Officer, School Tribunal, Amravati and Aurangabad Division, Amravati and others.
(3) 2007 (1) Mh.L.J 597; St. Ulai High School and another vs. Devendraprasad Jagannath Singh and another.
(4) 2007(6) Mh.L.J. 667; Priyadarshini Education Trust and others vs. Ratis (Rafia) Bano d/o Abdul Rasheed and others ::: Downloaded on - 09/06/2013 14:34:02 ::: 19 He has also referred to the judgment of this Court in 2006(2) Mh.L.J. 530; Ramchandar Ramadhar Yadav vs. Hyderabad (Sind) National Collegiate Board and another., wherein it has been held that ;
"when petitioner was not appointed for a fixed period, the order of appointment clearly gave an indication that the vacancy in the post of Peon was a clear vacancy caused due to the resignation of one employee. At any rate, no material is on record to show that the vacancy in the post of Peon was temporary or that there was no permanent vacancy. Having gone through the appointment order, it is clear that the appointment of the petitioner was against clear permanent vacancy notwithstanding the appointment order stipulated it to be temporary. Mere use of the word "temporary" by itself will not make the appointment temporary. The order of the Education Officer granting or refusing to grant approval is not relevant to decide the status of the petitioner because the question of grant of approval is between the Education Officer and the management and the said is relevant only for the purposes of grant-in-aid by the State Government. As a matter of fact, the Education Officer while granting approval ought to have applied his mind to the order of appointment and ought not to have treated it as temporary appointment. He ought to have granted his approval for two years. In the circumstances, the Tribunal was not right in deciding the legality of the termination order taking shelter of the order of approval granted by the Education Officer The learned counsel has also referred to the judgment of the Division Bench of this Court reported in 2007(6) Mh.L.J. 667;::: Downloaded on - 09/06/2013 14:34:02 ::: 20
Priyadarshini Education Trust and others vs. Ratis (Rafia) Bano d/o Abdul Rasheed and others wherein it has been held thus;
"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. Once an eligible candidate (duly qualified as required) is selected by selection process as above, for filling in a permanent vacancy, there is no option for the management and it is obligatory on it to appoint such person on probation for a period of two years. It is neither open for the management to appoint him for one academic year or any period shorter than two years probation period, nor it is open for Education Officer to grant approval for such shorter period (in fact, in view of requirement as in clause (i) above, the process of grant of approval by Education Officer should begin with examination of selection process and its validity). The candidate thus selected with due process and appointed on probation shall enjoy status of deemed permanency on completion of two years, unless extension of probation is informed, or termination is ordered. The appointment of a person not belonging to reserved category, in a post reserved for a particular category, because the candidate of that category is not available, shall be absolutely temporary and on an year to year basis, governed by sub-rule (9) of Rule 9, although in a permanent vacancy."
16. On perusal of these authorities and considering the issues raised in the instant case in hand, one has to see whether the ::: Downloaded on - 09/06/2013 14:34:02 ::: 21 appointment of the petitioner was made on "probation" in a "permanent vacancy" and whether it was in conformity with the procedure laid down; before the merits of the case, can be considered.
17. In this context, Section 5 of the M.E.P.S. Act, needs to be referred, which read thus--
"5. Certain obligations of Management of private schools :
(1) The Management shall, as soon as possible, fill in, in the manner prescribed, every permanent vacancy in a private school by the appointment of a person duly qualified to fill such vacancy :
[Provided that unless such vacancy is to be filled in by promotion, the Management shall, before proceeding to fill such vacancy ascertain from the Educational Inspector, Greater Bombay, {the Education Officer, Zilla Parishad or, as the case may be, the Director or the Officer designated by the Director in respect of schools imparting technical, vocational, art or special education} whether there is any suitable person available on the list of surplus persons maintained by him, for absorption in other schools; and in the event of such person being available, the Management shall appoint that person in such vacancy.] (2) Every person appointed to fill a permanent vacancy shall be on probation for a period of two years. Subject to the provisions of sub-sections (3) and (4), he shall, on completion of this probation period of two years, be deemed to have been confirmed.::: Downloaded on - 09/06/2013 14:34:02 ::: 22
(3) If in the opinion of the Management, the work or behaviour of any probationer during the period of his probation, is not satisfactory, the Management may terminate his services at any time during the said period after giving him one month's notice {or salary of one month in lieu of notice} (4) If the services of any probationer are terminated under sub-section (3) and her is reappointed by the Management in the same school or any other school belonging to it within a period of one year from the date on which his services were terminated, then the period of probation undergone by him previously shall be taken into consideration in calculating the required period of probation for the purposes of sub-section (2).
[4A. Nothing in sub-section (2), (3) or (4) shall apply to a person appointed to fill a permanent vacancy by promotion or by absorption as provided under the provision to sub-section(1)] (5) The Management may fill in every temporary vacancy by appointing a person duly qualified to fill such vacancy. The order of appointment shall be drawn up in the form prescribed in that behalf, and shall state the period of appointment of such person.
The relevant Rules can be found in M.E.P.S. Rules viz. Rule 6 & 9.
The procedure provided for appointment of a teacher has to be followed scrupulously, otherwise such appointments cannot be said to be legal. The issue as to whether the appointment is proper or not, has to be considered by the School Tribunal while considering ::: Downloaded on - 09/06/2013 14:34:02 ::: 23 the appeal of the petitioner.
18. In these circumstances, the appointment order of the petitioner needs to be closely scrutinized. The relevant appointment order reads as under
APPOINTMENT ORDER OFFICE OF PREETI SHIKSHAN SANSTHA, SANT TUKDOJI WARD BHANDARA, TQ. & DISTT. BHANDARA No.1/98 Ku.Jaimala Bhaurao Ramteke, With reference to your application dated 31/5/98, you are informed that, with effect from 1.6.1998 or the date on which you will join the services from that date, you are here by appointed as Assistant Teacher in the pay scale of Rs.1200/- per month., You will be entitled to the local allowances, housing allowance and dearness allowance, as may be granted by the Government time to time.
2) This appointment is on the vacancy created due to leave, for the period between 1.6.1998 to 30.5.2000 and is purely on temporary basis.
After completion of this period, your services will come to an end without any intimation.
Your appointment is for two years, or for probation period.
3) Your services will be governed by M.E.P.S. ::: Downloaded on - 09/06/2013 14:34:02 ::: 24 (Conditions of Services) Regulation Act, 1977, and the Rules framed thereunder.
4) Within a period of three months from the date of joining of this post, you will have to get yourself medically examined, from Civil Surgeon, Bhandara. Your appointment is subject to the fitness certificate to be issued by the Doctor named above.
(5) Please acknowledge this appointment order and communicate the acceptance thereof within a period of three days from the date of receipt of this order.
(6) If within the period shown in paragraph No.5, no reply is received, this order will be treated as cancelled.
Bhandara Sd/-
Dt. 1.6.98 Secretary,
Preeti Shikshan Sanstha, Bhandara,
No doubt, it shows that the appointment was for two years and one of the clause reads; "it is for two years or for probation period".
But it appears that the said order is as per Schedule D is in proforma, provided for issuance of letter of appointment, which read thus--
SCHEDULE 'D'
ORDER OF APPOINTMENT
No. Date
From
To
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25
Shri/Smt._____________________________________ ___ With reference to your application dated _________, I have the pleasure to inform you that you are hereby appointed as ______ on Rs._______ per month in the scale of Rs._____ with effect from ________ or the date you report for duty. You will be entitled to allowances such as compensatory local allowance, house rent allowance and dearness allowance as specially sanctioned by Government from time to time.
2. Your appointment is purely temporary for a period of ____ months/years from ______ in the leave/deputation vacancy. After expiry of the above period, your services shall stand terminated without any notice.
or Your appointment is on probation for a period of two years.
3. The terms of your employment and conditions of service shall be as laid down in the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, and the Rules made thereunder.
4. You shall have to undergo a medical examination by Dr. ____ within three months from the date of joining the post. Your appointment shall be conditions pending the receipt of physical fitness certificate from the doctor whose name is mentioned above.
5. You are requested to acknowledge receipt of this order of appointment and communicate the acceptance of the appointment within ____ days from the date of receipt of the same.
::: Downloaded on - 09/06/2013 14:34:02 ::: 266. If no reply accepting the appointment is received with the period mentioned in paragraph 5, the order shall be treated as cancelled.
Yours faithfully, Head Master and Secretary of the School Committee (in the case of appointment order of teaching and non-teaching staff of the school excluding the Head Master/Assistant Head Master.) Chief Executive Officer (in the case of order of appointment of Head Master/Assistant Head Master) It clearly appears that the intention was to appoint the petitioner only for temporary period. The words do indicate this i.e. "Agdi Tatpurtya Swarupachi Ahe"( ). It appears that the words appointment on probation seems to be there only because of the proforma, which remained to be scored. But the tenor of the said appointment order does not indicate that the appointment was in the vacancy of the permanent post of a teacher.
The words ( ) "Raja Pratiniyukti Ya Nimitya Rikta Zalelya Padawar", clearly show that their intention was to appoint the petitioner on temporary vacancy. Therefore, it was for the petitioner to demonstrate that at the relevant time post of permanent teacher was vacant, permission to fill in that post was sought from E.O. and after following due ::: Downloaded on - 09/06/2013 14:34:02 ::: 27 procedure, she was so appointed.
19. No doubt, the petitioner has now tried to produce the documents through the Education Officer, to show that the relevant advertisement was issued, applications from eligible candidates were invited and thereafter selection of the petitioner was made to that post. But all these contentions do not seem to be specifically pleaded, raised & proved before the School Tribunal.
20. Learned counsel for the respondents has and perhaps rightly pointed out that the advertisement issued by Respondent and produced by the Education Officer that the said advertisement was issued after the initial appointment of the petitioner. It does not seem to be related to the appointment of petitioner. More over no such record was called by the petitioner before the School Tribunal to prove this aspect.
21. It would be seen from the order of appointment of the petitioner as well as proforma appointment order that there are two distinct clauses, (i)- appointment is to the post on purely temporary basis for such and such period in leave vacancy, and, (ii) -
the appointment is on probation for a period of two years. As ::: Downloaded on - 09/06/2013 14:34:02 ::: 28 there is specific mention regarding the appointment of petitioner in leave vacancy, in the instant case, it cannot be said to be an appointment on a post of permanent vacancy.
22. I have already pointed out above that there is no material on record to suggest that all the relevant rules and provisions were infact followed before the appointment of the petitioner and the Education Officer had granted permission to recruit the employee in the permanent vacancy as required under Section 5 of the M.E.P.S. Act. Mere approval to the appointment of the petitioner would not go to resolve the irregularity/illegality committed by the management in the appointment of the petitioner. The authorities referred by the learned counsel for petitioner would not help him.
23. At this stage, it is necessary to refer to the judgment of this Court in 2003(1) Mh.L.J. 425; Nehru Jankalyan Bahu-
Uddeshiya Shikshan Sanstha, and another vs. Mohan Suryabhan Wanjari and another, wherein it has been observed in paras 10 and 11 thus--
10. I have considered the contentions canvassed by the learned counsel for the parties. From the above referred facts, it appears that initial appointment of the respondent ::: Downloaded on - 09/06/2013 14:34:02 ::: 29 no.1 made in the year 1991 was on clock hour basis and was till 30.6.1992. Similar is the situation in respect of second appointment of respondent no.1, which was made in the year 1992. The respondent no.1 was thereafter appointed temporarily on 9.8.1993 for a period of one year and Education Department accorded approval to this appointment as a part time Lecturer. The respondent No. 1 was thereafter appointed in the year 1994-95 vide order dated 3-8.1994 purely on temporary basis for a period of one year. Perusal of the appointment order dated 9-8-1993 shows that appointment of the respondent no.1 was purely on temporary basis for a period of one academic session, i.e. from 9-8-1993 till end of the said academic session. Though it is mentioned in the said order that it is in a clear vacancy, the words "clear vacancy" need to be understood in a right perspective and are required to be given appropriate meaning. The original order of appointment shows that it was on probation for a period of one year. It is, therefore, clear that this order of appointment cannot be said to be an appointment in a clear vacancy on a permanent post and on probation for a period of two years and, therefore, this appointment order does not confer any right of permanency
- deemed or otherwise contemplated under Section 5(2) of the Act.
11. Similarly, another appointment order dated 3.8.1994 was till end of the said academic session. This order of appointment also shall not create any right of permanency, even if word "probation" is finding place in the order since Management violated the mandate of sub-section (1) of section 5 of the Act. Sub-Section (1) of Section 5 contemplates that Management shall as soon as possible fill in, in the manner prescribed, every permanent vacancy in a private School by appointment of a person duly qualified to fill such vacancy and proviso to sub-section (1) of Section 5 further contemplates that before filling up such vacancy by appointment, the management is required to ascertain from the Education Department whether there is any suitable person available on the list of surplus persons maintained by it for absorption in other Schools and in the event of such person being available, the Management is required to appoint that person in vacancy. The above referred ::: Downloaded on - 09/06/2013 14:34:02 ::: 30 provision has a rationale behind it as Teachers/Lecturers, who are permanent and declared surplus because of certain contingencies are entitled to be absorbed in some other School or Junior College in view of provisions of sub-rule (2) of Rule 26 of the M.E.P.S. Rules and, therefore, it is made incumbent on the management to obtain prior permission from the Education Department before filling up the permanent vacancy. However, in the instant case, no such permission was sought by the Management before issuing order of appointment dated 9-8-1993 or 3-8-1994 and, therefore, procedure adopted by the Management is inconsistent with the above referred provisions and hence, the said appointment of respondent No.1 cannot be treated as a valid appointment for the purpose of grant of permanency in the post of Junior College Lecturer."
It was held that sub-section 5 of M..E.P.S. Act contemplates that management shall as soon as possible fill the post in the manner prescribed for, if the manageress is required to appoint that person in the vacancy.
24. Even the reply of the Education Officer is silent on such compliance by the management. It is necessary to note that the illegal appointment can not obtain the stature of legal appointment simply because it is challenged by the petitioner and not contested by the Education Officer. Illegality has to be illegality for ever. It can, in no circumstances, be allowed to be converted into legality even if some parties do not object, particularly, in the cases of appointments where prescribed procedure has to be followed because of some object and rationale behind it.
::: Downloaded on - 09/06/2013 14:34:02 ::: 3125. In these circumstances, the view taken by the learned School Tribunal cannot be said to be incorrect.
26. Learned counsel for the petitioner has contended that the petitioner was continued in service till 2008 by virtue of the interim order of the School Tribunal. This fact, by itself cannot create any equity in favour of the petitioner for getting her appointment to be converted into legal appointment as such, when her appointment was illegal ab-inito. No doubt, she appears to have been conferred with some financial powers and charge of headmistress, but that fact by itself will not invite an inference of her appointment being in place of permanent employee. Alleged satisfactory completion of probation and only for that she would not get the status of permanent employee.
27. Here is the case where respondent Nos. 2 & 4 are alleging that petitioner was appointed in the said post inasmuch as she was daughter in law of the secretary of the managing committee of respondent Management. I need not go into the details of such allegations and appreciation thereof. Fact remains that once the appointment is not proved to have been taken place by following ::: Downloaded on - 09/06/2013 14:34:02 ::: 32 legal procedure, it would not create any right in favour of the petitioner that of a "permanent employee". I need not go into the aspect of remedies available to the petitioner in such circumstances.
Such aspect was considered in the Nehru Jankalyan's case, referred above, wherein in para 12 it has been observed thus--
"12. For the reasons stated hereinabove, the impugned order passed by the School Tribunal is misconceived and illegal and hence, the same is quashed and set aside.
On the backdrop of above referred facts, it is undoubtedly clear that conduct of the petitioner Management in not obtaining prior permission from the concerned Education Authority before appointment respondent NO.1 is inconsistent with sub-section (1) of section 5 of the Act and entire fault lies with the Management. It is no doubt true that such appointment being inconsistent with the provisions of the Act is not valid. However, this is due to sheer negligence of the Management in not action as per provisions of the Act and, therefore, it would be appropriate that respondent no.1 is adequately compensated by the Management. Hence, petitioner Management is directed to pay rupees thirty thousand as compensation to the respondent No.1 within a period of six weeks either by a cheque or demand draft"
28. In my opinion, when the petitioner was continued in the employment only by virtue of the interim order of the school tribunal, she would not be entitled for such compensation; by the order of this Court in this petition.. If at all she wants to claim any compensation, she can do so, by taking recourse to the available ::: Downloaded on - 09/06/2013 14:34:02 ::: 33 legal remedies. Liberty to the petitioner in this context.
29. In these circumstances, it is also not necessary to consider as to what is the effect of "status quo' order and say of the respondent management that the petitioner was relieved on 11.12.2008 after the appeal of the petitioner was dismissed.
30. The result of the above discussion is obvious. The petition needs to be dismissed. The same is dismissed. No order as to costs.
31. It is also necessary to observe that the Education Officer need to take appropriate actions at the appropriate stage when the appointments of teachers are made in the private schools receiving 'grant-in-aid' and approvals are sought for such appointments. They are legally bound to consider whether such appointments have been made by following due procedure of law. If any breaches are noticed, it is for the Education Officer to take appropriate action, at that very moment against the management and the school, as may be permissible at law. Otherwise they need to be held liable as it gives rise to unwarranted litigation & cause harassment to the concerned employees at times injustice. To ensure such actions, a ::: Downloaded on - 09/06/2013 14:34:02 ::: 34 copy of this judgment may be forwarded to the Secretary, Education Department, Mantralaya, Mumbai for issuing appropriate directions.
JUDGE
Rvjalit
ig **********
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