Allowed

President Shri Vasantrao Naik Shik.Pra.Man.and Anr. v. Rajashree Laxmanrao Salve and Anr.

Bombay HC10 Jul 2014WP/1/2001

Case brief

AI extract

What is this about?

This High Court petition, filed by school management, challenged a School Tribunal order restoring a teacher to service. The court held that the appointment was illegal as it bypassed selection procedures and lacked a sanctioned vacancy in the teacher's category, quashing the Tribunal's judgment.

What did the court decide?

The order of the School Tribunal dated 30th October, 2000 is quashed and set aside. The appeal of the respondent is dismissed.

President Shri Vasantrao Naik… — Pension and Retirement Benefits | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 1 OF 2001

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The President, Shri Vasantrao Naik Shikshan Prasarak Mandal, Gangakhed, Tq. Gangakhed, Dist. Parbhani.

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The Head Master, Swami Vivekanand High School, Ambad Road, Jalna, Taluka and District : Jalna. ...Petitioners

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Versus

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Smt. Rajashree Laxmanrao Salve, Age : 28 years, Occ : Unemployed, r/o. Ramnagar, near Police Colony, Jalna, Tq. and Dist. Jalna.

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The Education Officer (Secondary) Zilla Parishad, Jalna, Taluka and Dist. Jalna. …. Respondents

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..... Mr V. D. Salunke, Advocate for petitioners Mr A. P. Chawre, Advocate for respondent No. 1

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CORAM : N. W. SAMBRE, J. DATED : 10^th JULY, 2014.

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ORAL JUDGMENT: -

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Heard both sides.

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The instant petition is presented by Management, which runs various secondary schools. The petitioners-Management has questioned the judgment dated 30^th October, 2000 delivered by the School Tribunal, Aurangabad Division, Aurangabad, in Appeal No. 210 of 1998, whereby the appeal preferred by respondent No. 1 against the

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alleged order of termination dated 18^th June, 1998, came to be allowed with directions to the petitioner-Management to reinstate respondent No. 1, on the post of Assistant Teacher with payment of full back wages.

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Mr V. D. Salunke, learned Counsel for the petitionerManagement, has invited attention of this Court to the fact that, the petitioner-Management has appointed in all four persons including that of respondent No. 1. Those four persons are; R. R. Kamble, Shri. H. T. Sawant, Shri. V. B. Gaikwad and Smt. Rajashree Laxmanrao Salve, who is respondent No. 1 to the present petition. The said appointment was done by the President of the Trust by issuing appointment order dated 18^th July, 1997, and according to learned Counsel for petitionersManagement, except respondent No. 1, rest of the candidates, who had been appointed, were holding appropriate qualification i.e. B.Ed./D.Ed. So far as respondent No. 1 to the present petition is concerned, she was holding qualification of M.A. B.P.Ed., which is acquired by her after completion of her graduation.

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The learned Counsel for petitioners-Management submits that the appointment order, which was issued to respondent No. 1 by the President of the Society on 18^th July, 1997, contains a condition that the appointment of respondent No. 1 is subject to approval of the Education Officer (Secondary), Zilla Parishad, Jalna. The learned Counsel submits that, though the said appointment order is in accordance with Schedule

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'D' of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and Rules, 1981 (in Short "MEPS Act and Rules"), the said condition was incorporated in the appointment order having regard to the fact that respondent No. 1 was not holding required qualification. In addition to above, he submits that, there was no clear vacancy available with the petitioner-Management of Assistant Teacher and the appointment of respondent No. 1 was a back-door entry. He submits that, as the Education Officer had refused to grant approval to the appointment of respondent No. 1 on the post of Assistant Teacher and approval was accorded to the appointment of other candidates, who were selected with respondent No. 1, which prompted her to abandon the services. He submits that respondent No. 1, styling the said abandoning of service as a termination, approached the School Tribunal vide Appeal No. 210 of 1998 alleging therein that she was terminated on 18th June, 1998.

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The learned School Tribunal, Aurangabad, after considering the said appeal of respondent No. 1, which was accompanied with the application for condonation of delay, has allowed the application for condonation of delay and has proceeded to pass an order on merit on the appeal.

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The contention of respondent No. 1 before the School Tribunal

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was that, she holds appropriate qualification in terms of provisions of

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Schedule 'D' of the MEPS Act and Rules. According to respondent No. 1 before the Tribunal, as she was holding appropriate qualification as is required for the post of Assistant Teacher, she was rightly appointed, and termination of her services was in contravention to the provisions of Rule 28 of the MEPS Act and Rules. The said contention of the respondent came to be accepted by the Tribunal by overlooking the claim of the present petitioners-management and issued the directions of quashing of termination order of respondent No. 1, reinstatement with full back-wages. As such the order passed by the Tribunal on 30^th October, 2000 is impugned in the present petition.

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Mr V. D. Salunke, learned Counsel for the petitionersManagement, has invited attention of this Court to the fact that respondent No. 1 was not holding appropriate qualification. He submits that, the appointment of respondent No. 1 was without taking recourse to the provisions of Rule 5 and without adhering to the selection process as is contemplated under the MEPS Act and Rules. He submits that, the appointment is required to be carried out by the School Committee, and in case of Assistant Teacher, the order of appointment is required to be issued by the Secretary of the School Committee. He submits that, in the present case, respondent No. 1, in absence of any advertisements, straightway applied to the President of the Society and the President in his individual capacity has proceeded to pass an order appointing her on the post of Assistant Teacher. Learned Counsel for

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the petitioners-Management further invited attention of this Court to the fact that in view of the condition incorporated in the appointment order that the appointment is subject to approval by the Education Officer, the services of respondent No. 1 were rightly terminated by the petitionersManagement. He submits that, the petitioners-Management having realized that, there was no sanctioned post available with it in the category of Physical Education Teacher, has terminated the services of respondent No. 1.

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Mr Salunke, learned Counsel further submits that, all the above referred submissions were ignored by the School Tribunal and has drawn adverse inference to interest to the petitioners-Management by referring to the proposal of approval, non-production of said document before the Tribunal and the conduct of respondent No. 1 as regards getting appointment against clear vacancy etc. He submits that, the said appointment if tested in the light of the provisions of Rule 2(k) read with Rule 5 of the MEPS Act and Rules, the said appointment of respondent No. 1 must be termed as back-door entry. He further submits that the services of respondent No. 1, as such was rightly terminated / abandoned by respondent No. 1.

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9. While countering the above referred submissions, Mr A. P.

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Chawre, learned Counsel for respondent No. 1, has invited attention of this Court to the fact that, this Court has very limited scope of interfering

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in the jurisdiction while dealing with the order passed by the subordinate Tribunal. He submits that, unless the Petitioners-management demonstrates any perversity, failure to exercise the jurisdiction or failure to appreciate the evidence and the order of the Tribunal should not be interfered with in its extraordinary jurisdiction. He further submits that the appointment of respondent No. 1 was rightly held to be against clear vacancy by the Tribunal. He further invited attention of this Court to the provisions of Rule 2(k), which defines 'Trained Teacher' and submits that, respondent No. 1 holds appropriate qualification in view of the provisions of Schedule 'B' Part II clause 1 (V) of MEPS Act and Rules. He further urged that, once a candidate like respondent No. 1 is appointed on a probation against a clear vacancy, unless the services of the probationer are found to be unsatisfactory or the said fact is not brought to the notice of such petitioner, the services cannot be terminated. He submits that, there is a mechanism provided under the MEPS Act and Rules and invites attention of this Court to Rule 28 of MEPS Act and Rules so as to demonstrate that, before terminating the services, one month notice is obligatory to be issued to a probationer and as such submits that the order of termination which is interpreted by the School Tribunal by reasoned order be not disturbed.

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10. Having considered rival contentions of the parties, it appears

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from the record that the Tribunal, based upon the pleadings raised in the appeal and the contentions raised by the present petitioner in the said

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appeal in the form of written statement, has allowed the appeal. The Tribunal has framed issues as regards the termination of the services of respondent No. 1 to the present petition. The Tribunal, while answering the said issue, has held that the petitioner has orally terminated the services of respondent No. 1 on 18^th June, 1998 and has further held that the said termination is in contravention of MEPS Act and Rules. While giving said finding, the learned Tribunal has taken shelter of Section 5(3) to reach to a conclusion that, the termination of services of respondent No. 1 is illegal.

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It appears from perusal of memo of appeal preferred by respondent No. 1 before the School Tribunal, it is clearly pleaded in paragraph 4 that, the respondent No. 1 as per directions of the president of the petitioners-Management, applied for the post of Assistant Teacher on 10^th June, 1997 along with all documents and certificates for filling up backlog. According to respondent No. 1, as she belongs to reserved category (SC), she was interviewed by the President and appointment order came to be issued. The fact remains that, after perusal of the said pleadings and having tested the same in the light of the submissions raised in the written statement, it is the case of the present petitioners that the appointment of respondent No. 1 is without following due process of law as is provided under MEPS Act and Rules. The learned Counsel for the petitioners- Management while pointing out the said fact from the written statement, has categorically invited attention of this

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Court to the fact that there was no vacancy for the post of Assistant Teacher in the Physical Education category. The contention of the petitioners that, the qualification which is possessed by respondent No. 1 is not provided in the MEPS Act and Rules, is required to be rejected in view of the fact that the perusal of Schedule 'B' Part II clause 1 (V) of MEPS Act and Rules provides that, a candidate who is appointed to be a Physical Education Teacher should hold a degree of Graduate and B.P.Ed. as possess by present respondent No. 1. In view of the said fact, the contention of petitioners that, respondent No. 1 was not holding appropriate qualification is liable to be rejected. So far as the next contention of the petitioners that, the appointment of respondent No. 1 was de hors the provisions of MEPS Act and the Rules, if tested in the light of the procedure adopted by respondent No. 1 at the time of appointment, it appears that there was no prior sanction from the Education Officer for filling up the post as provided under Rule 5 of the MEPS Act and Rules. In addition to above, it is also required to be taken note of the fact that the post which is filled in and given to the present respondent No. 1 was never advertised.

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This Court while considering the availability of vacancy with the petitioners-management has directed the Education Officer to file an affidavit. Education Officer after perusal of the record in relation to the petitioners-Management has filed an affidavit. The Education Officer has made a clear statement that number of B.P.Ed. teachers required in

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the School as per staffing pattern is 3 as against which 5 teachers are actually working in the petitioner-School. He submits that the total sanctioned strength of the approved staff with the management in the year 1997-98 was 27. He submits that the qualification of the present respondent No. 1 if tested in the light of the qualification required for the post of Assistant Teacher other than a teacher imparting a lesson in physical education, the qualification of the respondent No. 1 is good for the post of Physical Education Teacher, for which, in that academic session, no vacancy was available. According to Education Officer, in fact the number of teachers who were working in the said academic session having B.P.Ed qualification was more than the required.

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In that view of the matter, the very selection and appointment of respondent No. 1 has to be declared as without following due process of law.

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The contention of Mr Chawre, learned Counsel for respondent No. 1, that respondent No. 1 cannot be meted with a discriminatory treatment than that of the treatment given to other three teachers, who were employed along with respondent No. 1, is also liable to be rejected in view of the fact that, this Court having noticed illegality in the matter of

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recruitment of respondent No. 1, cannot permit the same to be continued just because there are three persons who are similarly placed but are meted with different treatment by the management. It is for the

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management to take appropriate action in the said matter, if so desires. However, this Court is required to deal with the case that is canvassed before it.

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The reliance placed by the learned Counsel for the petitioner in the judgment of this Court in the a matter of Priyadarshini Education Trust and others vs. Ratis (Rafia) Bano d/o Abdul Rasheed and others reported in 2007(6) Mh.L.J. 667 , is required to be referred while reaching to the above referred conclusion. The observations of this Court in paragraph 12 reads thus.

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“12. ...… In view of these elements, even if an educational institution may not be “State”, or “instrumentality of State” or “other authority” as contemplated by Article 12 of the Constitution, it will not be in a position to act as an autonomous body, having no responsibility to ensure protection of fundamental rights conferred by Articles 14 and 16 upon the citizens. The educational institutions shall not be able to treat themselves at part with private employer who pays salaries and allowances from his own pockets, even when initially the school is being run by the management with its own expenses, but in anticipation of receipt of grants-in-aid from 4^th academic year as per permission to run the school is granted. In view of the provisions as contained in section 5 of the MEPS Act and Rules 9 of MEPS Rules read with Articles 14 and 16 of the Constitutions and the observations of the Hon'ble Apex Court in the reported judgment which guide us, we draw following conclusions;

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(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.

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(ii) 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.]

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(iii) 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.

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(iv) The appointment of a person not belonging

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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.

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Perusal of the above referred observations, it is clear that the very selection and appointment of respondent No. 1 does not fit into above referred criteria, which is referred by the High Court having regard to the provisions of MEPS Act and Rules and the view expressed thereon. As such the present petition is required to be allowed.

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In view of above observations, the order dated 30^th October, 2000 delivered by the School Tribunal, Aurangabad Division, Aurangabad, in Appeal No. 210 of 1998 is quashed and set aside. The appeal preferred by the present respondent No. 1 is dismissed. No order as to costs.

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( N. W. SAMBRE, J. )

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Punde

President Shri Vasantrao Naik Shik.Pra.Man.and Anr. v. Rajashree Laxmanrao Salve and Anr.

Case brief

What is this about?

What did the court decide?

President Shri Vasantrao Naik Shik.Pra.Man.and Anr. v. Rajashree Laxmanrao Salve and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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