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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.3834 OF 2002
Chandrashekhar s/o Dhaniram Patel,
Aged about 32 years,
Occupation : Unemployed,
R/o Quarter No.5/74,
Raje Raghuji Nagar,
Nagpur. ... Petitioner
Versus
1. Navshakti Vidyalaya,
through its President/Secretary,
Adarsh Vinkar Colony,
Tandapeth, Nagpur,
Tah. and Distt. Nagpur.
2. Head Master,
Navshaksti Vidyalaya,
Adarsh Vinkar Colony,
Tandapeth, Nagpur.
3. Education Officer,
Zilla Parishad, Nagpur.
4. Sou. R.B. Kedar.
5. Shri R.V. Wadatkar.
6. Shri V.B. Gabhane.
All resident of C/o Navshakti
Vidyalaya, Adarsh Vinkar Colony,
Tandapeth, Nagpur. ... Respondents
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Shri S.S. Voditel, Advocate for Petitioner.
Shri A.A. Naik, Advocate for Respondent Nos.1 and 2.
Smt. I.L. Bodade, AGP for Respondent No.3.
Shri G.D. Vaidya, Advocate for Respondent Nos.4, 5 and 6.
CORAM : R.C. CHAVAN, J.
Reserved on : 22-1-2010.
Pronounced on : 26-3-2010.
JUDGMENT :
1.
This petition by a Teacher is directed against the judgment
dated 31-7-2002 by the School Tribunal, whereby the Tribunal dismissed
the petitioner’s appeal questioning his oral termination with effect from
4-5-1995.
2.1 Facts, which are material for deciding this petition and
about which there is not much dispute, are as under :
2.2 The petitioner, who did not belong to the Scheduled
Caste/Scheduled Tribe/Nomadic Tribe category, was appointed as
Assistant Teacher on 9-8-1994 by respondent Nos.1 and 2 in a post
which was reserved for those categories. The petitioner belongs to
Other Backward Class category. The petitioner claimed that his services
were terminated on 4-5-1995, whereas according to the Management,
the services were terminated on 30-4-1995 on the term of appointment
coming to an end.
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2.3 The petitioner’s claim before the School Tribunal that the
petitioner was appointed in a permanent vacancy without issuing any
appointment order, as also that his service was orally terminated
without any notice was rejected by the Tribunal, holding that the
petitioner’s appointment was not as per Section 5(2) of the Maharashtra
Employees of Private Schools (Conditions of Service) Regulation Act,
1977 (for short, “the MEPS Act”) and was not approved by the Education
Officer. The Tribunal, therefore, concluded that the impugned order of
before this Court.
the petitioner’s termination was legal. This is why the petitioner is
3. I have heard elaborate arguments painstakingly advanced
by both the learned counsel for the petitioner as also respondent Nos.1
and 2. Since it cannot now be disputed that the School Tribunal has the
exclusive jurisdiction to deal with cases of teachers even from
Institutions, which do not receive grant-in-aid, it is not necessary to deal
with the judgments in Shailaja Ashokrao Wasle v. State of
Maharashtra and others, reported at 1999(1) Mh.L.J. 291, and St.
Ulai High School and another v. Devendraprasad Jagannath
Singh and another, reported at 2007(1) Mh.L.J. 597.
4. The learned counsel for the petitioner first, submitted that a
forged appointment order had been placed by the Management before
the Tribunal, which had not at all been given to the petitioner. This
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appointment order is at Page 29 (Annexure-III) of the petition. It may be
seen that though in one sheet the document is in two parts – the first
appointment letter, and the second – an acknowledgment thereof by the
Teacher, with the words “cut here” appearing in between. The learned
counsel for the petitioner submitted that this would imply that the
Management should have in its possession two separate sheets of
appointment and acknowledgment, and production of this composite
document is itself sufficient to reject the document as untrustworthy.
As rightly pointed out by the learned counsel for respondent Nos.1 and
2, the document was produced by the Management, which was the copy
on the record of the Management. Therefore, there was nothing wrong
in both the order and acknowledgment being on one sheet. The first
part relating to appointment in original was given to the petitioner and
on the office copy, without cutting the two parts, the petitioner’s
acknowledgment was obtained. He pointed out that when before the
Tribunal the termination order had been caused to be sent by the
petitioner for examination by the Handwriting Expert, the signature of
the petitioner on this acknowledgment part of the appointment order
was shown as comparative signature or admitted signature. The fact
that the petitioner’s signature appears on the acknowledgment part,
which is on the same sheet, as the appointment order would repel the
petitioner’s contention that appointment order was not issued and
consequently his appointment was not for a fixed period.
5. In my view, a bare look at the appointment order would
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show that there is nothing irregular in both appointment and
acknowledgment parts of the order being on one sheet in office copy of
the School. Rather this is the only proper and safe way of obtaining
acknowledgments, removing any doubt as to whether some other
document was in fact given. Further the petitioner’s indicating his
signature on the acknowledgment part as comparative signature for the
purpose of assailing signature on termination letter would add to the
authenticity of the document – disproving the petitioner’s contentions in
this behalf. It cannot, therefore, be said that the Tribunal erred in
concluding that the petitioner was appointed by the order dated 9-8-
1994, and was aware of contents therein, namely that his appointment
was for fixed period from 9-8-1994 to 30-4-1995 and not on probation
for two years.
6. The learned counsel for the respondent submitted that
terms of appointment order are not decisive about nature of
appointment, while his learned adversary submitted those terms do
determine the question and both the learned counsel relied on a
number of judgments in support of their respective contentions.
7. I would examine the judgments to find out if, irrespective of
terms of appointment order, the petitioner could be held to have been
appointed on probation. Before going to the judgments cited, it may be
useful to reproduce for ready reference Section 5 of the MEPS Act, which
reads as under :
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Section 5 of the MEPS Act :
“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 except
shikshan sevak 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 :
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Provided that, every person appointed as shikshan sevak shall be
on probation for a period of three years.
(2A) Subject to the provisions of sub-sections (3) and (4),
shikshan sevak shall, on completion of the probation period of three
years, be deemed to have been appointed and confirmed as a teacher.
(4) If the services of any probationer are terminated under
sub-section (3) and he 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
purpose 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 proviso to sub-section (1).
(5) The Management may fill in every temp0orary 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.”
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8.1 In Hindustan Education Society and another v. Sk.
Kaleem Sk. Gulam Nabi and others, reported at [(1997) 5 SCC
152], on which Shri Naik, learned counsel for the respondent, relied,
facts were recounted as under :
“Para 3 : …The admitted position is that Respondent 1 came to be
appointed on 10-6-1992 against a clear vacancy with the following
stipulation:
“Your appointment is purely temporary for a period of 11 months
from 11-6-1992 to 10-5-1993 in the clear vacancy. After expiry of the
above period your service shall stand terminated without any notice.”
“Para 4 : Thus, it could be seen that the appointment of the first
respondent was only a temporary appointment against a clear
vacancy.”
8.2 After quoting the provisions of Section 5 of the MEPS Act,
the Supreme Court held as under :
“Para 5 : In view of the above and the order of appointment, the
appointment of the respondent was purely temporary for a limited
period. Obviously, the approval given by the competent authority was
for that temporary appointment. As regards permanent appointments,
they are regulated by sub-sections (1) and (2) of Section 5 of the Act
according to which the Management shall, as soon as possible, fill up, in
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the manner prescribed, every permanent vacancy in a private school by
appointment of a person duly qualified to fill in such vacancy. Every
person so appointed shall be put on probation for a period of two years
subject to the provisions of sub-sections (4) and (5). He shall, on
completion of the probation period of two years, be confirmed.”
“Para 6 : Under these circumstances, the appointment of the
respondent cannot be considered to be a permanent appointment. As a
consequence, the direction issued by the High Court in the impugned
judgment dated 31-7-1996 in Writ Petition No.5821 of 1995 that he was
regularly appointed is clearly illegal and cannot be sustained.”
8.3 It cannot be said that this judgment could not be taken to
have laid down a proposition of law that recitals in order of appointment
are decisive of nature of appointment, since it was rendered without
respondents therein being present before the Court. As rightly pointed
out by the learned counsel for the respondent, irrespective of whether
parties were present or not, pronouncements of Supreme Court, after
considering relevant provision of statute, must be held to have laid
down as to what are the implications of the statute.
9.1 The learned counsel for the respondent then relied on a
judgment of the Supreme Court in Bharatiya Gramin Punarrachana
Sanstha v. Vijay Kumar and others [(2002) 6 SCC 707]. It may be
useful to quote the relevant portions of the judgment so as to bring out
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the context in which the Supreme Court rendered the judgment, which
read as under :
“Para 3 : On 6-8-2001, this Court issued notice limited to the
question as to why the appointment of the respondent (Respondent 1)
should not be confined to the period mentioned in the order of
appointment dated 22-6-1996.”
“Para 4 : …The first respondent applied for the post of Lab Attend in
response to an advertisement. He was selected and appointed by the
appellant on 22-6-1996 for a period of two years from 24-6-1996 to
23-6-1998. The appointment of the first respondent was approved by
the Deputy Director of Education, Aurangabad initially for the academic
year 1996-97. As no approval was forthcoming for the next academic
year 1997-98 and the management was not in a position to pay the
salary to the first respondent, his services were terminated by the
appellant on 17-9-1997. …”
9.2. The argument, which the Apex Court considering, was :
“Para 6 : …Mr. B.N. Deshmukh, the learned Senior Counsel appearing
for the first respondent, invited our attention to sub-section (2) of
Section 5 of the Maharashtra Employees of Private Schools (Conditions
of Service) Regulation Act, 1977 (for short “the Act”) and submitted
that after the period of two years the first respondent would be deemed
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to have been confirmed, therefore, the order under challenge does not
warrant any interference.”
9.3 In this context, the Court held as under :
"Para 7 : We may notice here, Section 5 of the Act deals with certain
obligations of management of private schools. Sub-section (2) of
Section 5 on which reliance is placed by Mr Deshmukh reads as under:
“5.
Certain obligations of management of private schools.—
(1) * * *(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 (4) and (5), he shall, on completion of this
probation period of two years, be deemed to have been
confirmed.”
A plain reading of the said provision which is subject to the provisions of
sub-sections (4) and (5), would show that it applies to a person who is
put on probation consequent upon his appointment in a permanent
vacancy. In such a case the period of probation will be for a period of
two years. Sub-section (4) refers to computation of the period of
probation of a probationer who is terminated by the management
during the period of probation but who has been reappointed within a
period of one year. Sub-section (5) empowers the management to fill
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up temporary vacancy by appointing a qualified person in such a
vacancy. It is thus clear that only when an employee has completed
successfully the probation period of two years, sub-section (2) directs
that he shall be deemed to have been confirmed. In our view, this
provision does not help the first respondent. First, because his services
were terminated before completion of two years and his case does not
fall within sub-section (4); secondly, admittedly the first respondent was
appointed only for the period of two academic years 1996-97 and 1997-
98 and was not put on probation. The order of appointment specifically
mentions that after the expiry of the said period of two years the
services of the first respondent would come to an end without any
notice. Even the undertaking given by the first respondent recites that
on relieving him on the expiry of the period of academic year 1997-98
he shall not claim any right on the said post. It may be noticed that,
admittedly, the approval of appointment of the first respondent, given
from time to time, is also up to 1997-98. The order of termination,
referred to above, dated 17-9-1997, was passed before the expiry of the
said period of two years. Under the said order of appointment the first
respondent is entitled to remain in service till the end of academic year
1997-98.”
“Para 8 : For the aforementioned reasons, the order of the Tribunal
directing reinstatement in service of the first respondent has to be
confined to the period till 23-6-1998. The first respondent is, therefore,
entitled to his salary from the date of his termination till 23-6-1998.
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The order of the Tribunal as confirmed by the High Court is modified in
the above terms.”
10.1 The learned counsel for the respondent relied on a
judgment of this Court in Maharashtra Shikshan Sanstha and
another v. State of Maharashtra through the Secretary,
Department of Education, Mumbai and others [2003(2) Mh.L.J.
92], in which facts were narrated by this Court as under :
“Para 2 :
…The 1st petitioner – Maharashtra Shikshan Sanstha had
started a school, which was granted a provisional recognition by the
order dated 14-6-1985 for a period one year vide order of the same
date of the Education Officer, Zilla Parishad, Nagpur. The school was
again granted a recognition for a period of one more year, i.e. from
1986 to 1987 vide order dated 23-6-1986. This recognition was further
extended by one year from 1-4-1987 to 31-3-1988 vide order dated
8-7-1987 of the Education Officer, Zilla Parishad, Nagpur.”
“Para 3 : It is true that during this period the petitioner appointed
respondent No.3 as a teacher. The order of appointment dated 1-7-
1985 appoints the 3rd respondent as a teacher for a period of one year
from 1-7-1985 to 30-4-1986. As a matter of fact, the 3rd respondent
appears to have continued for another period of two years by the
management. However, there is no appointment order appointing the
3rd respondent for a period of two years. Apparently, the continuation
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was in an ad-hoc manner from year to year, having not shown any
appointment order to the contrary.”
10.2 The arguments, which the Court was considering, can be
gathered from following paragraph :
“Para 6 : Mr. Dharmadhikari, learned counsel, for the petitioners
relied upon a judgment of Supreme Court in Hindustan Education
Society and another vs. Sk. Kaleem Sk. Gulam Nabi and ors. – (1997) 5
SCC 152 in which the Supreme Court was considering the effect of an
appointment order for a period of 11 months from 11-6-1992 to
10-5-1993 in a clear vacancy. …”
10.3 The Court held :
“… Having regard to the fact that school was granted
recognition from year to year for a period of three years consecutively
and having regard to the admitted fact that the approval of 1st
respondent was not for more than one year, it is clear that the
appointment in question was similar to the one considered by Their
Lordships in decision cited supra.”
“Para 8 : In fairness, Mr. Manohar, learned counsel for the 3rd
respondent, did not dispute that the facts of the present case are
covered by the decision of Division Bench of this Court in Mathuradas
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Mohta College of Science vs. R.T. Borkar and others, 1997(2) Mh.L.J.
168. In similar situation, the Division Bench presided over the Chief
Justice Shri M.B. Shah, as then he was, has in paragraph 7 observed as
under :
“…Apart from this, even assuming that there was a clear
vacancy, the order issued was purely temporary and,
therefore, not proper order. However, it will be an error to
treat the said order as an order under Section 5 of the Act,
viz., the order for a period of two years probation. Such
legal fiction we do not find anywhere in the Act and the
Rules and, therefore, the finding recorded by the Tribunal
that the order is covered under section 5 of the MEPS Act is
not correct.”
10.4 This Court allowed the petition. The learned counsel for the
respondent submitted that a SLP No.21891 of 2002, preferred by the
teacher was dismissed by the Supreme Court on 29-11-2002. Review
Petition No.24 of 2003 too was dismissed by the Supreme Court on
16-1-2003. Thus the judgment of this Court has been approved by the
Apex Court.
10.5 The learned counsel for the respondent submitted that this
judgment would be squarely applicable to the case at hand, since even
in the present case, the School had been recognized for only one year.
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10.6 This judgment was followed in an unreported judgment of
this Court in Shri Sadguru Dnyan Prasarak Shikshan Sanstha,
Khairgaon, Taluka Narkhed, Distt. Nagpur, through its
Secretary Shri premraj Daulatrao Shelke and another v.
Presiding Officer, School Tribunal, Amrvati Division, Amravati,
Distt. Amravati) (Writ Petition No.3444 of 1994 Decided by
Hon’ble Shri Justice C.L. Pangarkar on 25th November, 2009), on
which the learned counsel for the respondent placed reliance.
10.7 Facts in the context of which the aforesaid unreported
judgment was rendered were recounted as under :
“Para 2 : The facts giving rise to the petition are as follows.
The petitioner runs a school known as Linga High School at
Linga, Tq. Warud. It is a recognized school and is governed by the
provisions of Maharashtra Employees of Private School (Conditions of
Service) Regulation Act, 1977 and Rules thereunder (M.E.P.S., Act).
There was a clear and permanent vacancy of an Assistant Teacher in
the said school in the year 1986-87. Respondent no.2 applied for his
appointment as an Assistant Teacher. He was accordingly appointed as
Assistant Teacher w.e.f. 13/9/1986 but according to respondent no.2,
no written order was issued. The services of respondent no.2, however,
were continued and he continued to work up to 30/4/1990. Respondent
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no.2 holds qualification M.A. B.Ed. It is the contention of respondent
no.2 that his services were orally terminated by the present petitioner.
Since the services of respondent no.2 came to be terminated, he filed
an appeal under Section 9 of the M.E.P.S. Act before the School
Tribunal.”
“Para 6 : From the submissions made in the memo of appeal, it does
not seem to be in dispute that respondent no.2 was appointed in clear
vacancy for three consecutive years i.e. from 1987-88 to 1989-90. His
appointment, however, was from year to year for three years.”
10.8 In this context, the learned Single Judge held as under :
“…According to clause 4.1 and 4.2 of the School Code, a
school upon establishment continues to receive temporary recognition
only for year to year for first five years. It is only after five years that it
becomes eligible for permanent recognition. This school itself had
temporary recognition from year to year during that period and
therefore there was no question of respondent no.2 being appointed on
probation for two years or in a permanent vacancy. This court had an
occasion to deal with similar contingency. In a decision reported in
2003(2) Mh.L.J. 92 (Maharashtra Shikshan Sanstha and anr. ..vs.. State
of Mah. through the Secretary).”
10.9 After quoting from the said judgment, the learned Single
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Judge held :
“Para 9 : The decision applies on all fores (sic fours) to the instant
case. It would be clear that the school had no permanent recognition
and was still under temporary recognition. The recognition could be
withdrawn any time and therefore, the posts that were available were
not permanent vacancies though they could be said to be clear
vacancies. In order to bring the case under Section 5(2) of the M.E.P.S.
Act, it would be necessary that the post against which the claim is
made is permanent. Due to the temporary recognition in no case the
post could be said to be permanent.”
11. I am in respectful agreement with these conclusions. Even
in the case at hand, it has been stated by the learned counsel for the
respondent that the School had recognition for one year only and so
there was no question of availability of a permanent vacancy. The
petitioner has not shown that the statement that the School had
recognition for only one year at the relevant time is not correct. The
learned counsel for the petitioner submitted that this burden ought to
be on the Management, which has the custody of relevant records. As
rightly countered by the learned counsel for the respondent, the
petitioner too could have sought relevant information from the
authorities concerned or could have sought relevant production of
documents before the Tribunal.
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12. The learned counsel for the respondent has placed reliance
on a judgment of this Court in Rayat Shikshan Sanstha and another
v. Yeshwant Dattatraya Shinde [2009(6) Mh.L.J. 476], to support
his contention that burden to show that he was appointed against a
permanent vacancy lay on the petitioner. The Court held as under :
“Para 3 : Admittedly there is no evidence on record that the
appointment of the respondent was made after following the procedure
laid down in the M.E.P.S. Act and Rules. The Tribunal has came to a
conclusion that the said appointment was made on a clear and
permanent vacancy. Admittedly, no advertisement was issued, nor any
interview was held and, as such, cannot be said that the appointment
was made on a clear and permanent post. The Tribunal, however,
came to the conclusion that the appointment was made on a clear and
permanent vacancy because the management was not in a position to
produce the relevant material on record. In my view, the burden of
establishing that the appointment was made on a clear and permanent
post that too were following the procedure laid down under the Act and
Rules, is squarely on the Appellant and not on the management. The
Tribunal, therefore, in my view, committed an error of law, which is
apparent on a face of record.”
13. The learned counsel for the petitioner relied on a judgment
of this Court in Priyadarshini Education Trust and others v. Ratis
(Rafia) Bano d/o Abdul Rasheed and others [2007(6) Mh.L.J.
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667], which resolves most of the issues and in which this Court held as
under :
“Para 12 : …In view of the provisions as contained in section 5 of the
MEPS Act and Rule 9 of MEPS Rules read with Articles 14 and 16 of the
Constitution and the observations of the Hon’ble Apex Court in the
reported judgment which guide us, we draw following conclusions;
(I) “duly appointed, in the manner prescribed” would be an
appointment of a person who is eligible (qualified for the
post) for appointment, who is selected by due process of
selection i.e. by competition amongst all eligible and desirous
candidates, and who is appointed on a permanent vacant
post. In other words, inviting applications, as also holding
of screening tests, enabling all eligible and desirous
candidates to compete for selection and appointment, is a
must.
(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 the requirement as in
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clause (I) above, the process of grant of approval by
Education Officer should begin with examination of
selection process and its validity.]
(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.
(iv) 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.”
14. In my humble opinion, “eligible” is not to be restricted to
eligibility as regards academic qualification but eligibility in all senses –
including belonging to a category/caste for which the vacancy was
reserved. The question whether the petitioner in this case at hand was
so eligible would be shortly dealt with while considering arguments
based on Rule 9 of the MEPS Rules.
15.1 The learned counsel for the petitioner relied on a judgment
of this Court in Hindi Vidya Bhavan, Mumbai and others v.
Presiding officer, School Tribunal, Mumbai and others [2007(6)
Mh.L.J. 563]. It may be useful to recount the peculiar facts of the case
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so as to comprehend the findings of the Court. The facts could be
gathered from the judgment as under :
“Para 2 : Petitioner No.1 is a Public Charitable Trust, registered under
the provisions of the Bombay public Trusts Act, 1950 runs a school by
the name Hindi Vidya Bhavan, now known as HVB Academy (“the
school” for short). Petitioner Nos.2 and 3 are the Principal and the
Secretary of the school respectively. Respondent No.3-employees were
the appellants in the appeals filed before the School Tribunal.
Respondent No.4 is, Mithila Azad Security Force (“Mithila” for short), an
agency/contractor, which was engaged to provide certain services to
the petitioners. According to the petitioners, respondent No.3 is an
employee of Mithila and was never in the employment of the school.”
“Para 3 : The case set out in the petitions by the petitioners is that
they have teaching and non-teaching staff for the school approved by
respondent No.2 – Education Officer. They engaged additional persons,
namely, respondent No.3-employees on ad hoc basis through Mithila.
The school was required to employ respondent-employees since various
services which were required to be provided to its students could not be
met with by the then existing staff employed by it and as sanctioned by
the Education Department. Therefore, in order to meet miscellaneous
services required from time to time, the petitioners had engaged Mithila
to provide additional persons on an ad hoc basis.”
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“Para 4 : The facts set out in the petition further disclose that the
school maintains two muster books one for its permanent employees
and another for its temporary employees. Two of the respondents-
employees in writ petition No.1495 of 2007 and 1498 of 2007, namely,
Parshuram Gurao and Manohar Pavaskar, were employed by the school
as peons on a temporary basis and their names were reflected in the
temporary muster roll maintained by the school for the said period.
They were also issued appointment letters. Parshuram Gurao and
Manohar Pavaskar, according to the petitioners, joined Mithila on 1st
to the petitioners.
October, 1996 and were deputed by Mithila to provide certain services
The other five employees were never on the
temporary muster of the petitioners and were at all material time
employees of the said Mithila. The bills raised by Mithila in respect of
the services provided by its employees to the school were paid from
time to time by the school. There is no dispute that all the respondent-
employees worked with the school for more than two years between
23-6-1995 and 8-4-2000 as Peons/Ayah. They all, as stated in their
appeals, were terminated on 8-4-2000.”
“Para 5 : According to the petitioners, in or about April, 1998 the
respondent-employees started claiming permanency in the service with
the school. This demand was sought to be conveyed through Mumbai
Labour Union, of which they claimed to be the members. In the weeks
that followed, the respondent-employees started creating serious
unrest by discharging their duties in a most unsatisfactory and
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perfunctory manner and then from 8th April, 2000 ceased to provide any
services to the petitioners. It appears that the respondent-employees
had initially filed a complaint before the Labour Court under the
provisions of MRTU and PULP Act against the petitioners. The said
complaints, however, came to be withdrawn and they all filed appeals
under section 9 of the Act before the School Tribunal.”
15.2 In this factual context, after considering applicable law, the
Court held as under :
“Para 28 : There could be an employee, either permanent or non-
permanent. Non-permanent employee may be either temporary or on
probation. The temporary employee is one who is appointed to a
temporary vacancy for a fixed period. In the present case, it is not a
case of the petitioners that the respondent employees were engaged
for a fixed period. Two of the petitioners were appointed as temporary
for two years since before they were shown as the employees of Mithila.
They all worked for atleast two years and when they started claiming
permanency they allegedly ceased to render services to the school.
Sub-section (2) of section 5 of the Act clearly provides that every
“person” appointed on a permanent vacancy shall be on probation for a
period of two years and he shall on completion of the probation period
be deemed to have been confirmed. If a person, duly qualified, is
appointed by the Management as a member of the staff and if it is not
disputed that such person has worked for two years, on a permanent
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vacancy, he is deemed to have been confirmed as provided for under
section 5(2) and consequently entitled for all the benefits of permanent
staff even if his appointment is not approved and formal order of
appointment was not issued. Non-approval of such post would not be an
embargo either on the management to make him permanent or on such
person to claim permanency. In the present case it is not in dispute
that all the respondent-employees worked for more than two years and
the posts on which they were appointed and working, no specific
qualification is prescribed.”
"Para 36 : The
submission that, in any case, the respondent-
employees are not entitled for reinstatement since they were
temporary or casual employees, based on the judgment of the Supreme
Court in Hindustan Education Society (supra) also deserves to be
rejected outright for more than one reason. Firstly, looking at the
nature of work they were doing for more than two years and that they
were qualified to work, their appointment cannot be treated as either
temporary or casual. Secondly, until all the respondent-employees
were terminated on the very same day they worked for more than two
years. The manner in which they were appointed and then terminated
it cannot be said that their appointment was temporary and they
deemed to have been made permanent on expiry of the period of two
years.”
16. The learned counsel for the petitioner submitted that after
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considering the judgment of the Supreme Court in Hindustan
Education Society, the learned Single Judge had concluded even in
the absence of any appointment order that the employees concerned
could not be held to have been temporary employees. His learned
adversary submitted that the judgment cannot be an authority for the
proposition that terms of appointment order can be ignored, since in
that case the Management had adopted stratagem of outsourcing to
avoid liabilities flowing from appointing employees permanently. Thus,
according to him, the decision is more a conclusion drawn from facts.
17.
I have carefully considered the judgment. It may be seen
that the judgment does not explain or elaborate the implications of
judgment of the Supreme Court in Hindustan Education Society. It
holds on facts as unfolded that the appointments were permanent. The
judgment is based on facts peculiar to that case. Yet the distinction
between permanent – non-permanent appointments flowing from Rule
10 of the Maharashtra Employees of Private Schools (Conditions of
Service) Rules, which has been highlighted in the judgment needs to be
borne in mind. In this regard, it has to be noted that the term
“permanent” has not been defined in the Act or Rules. Rule 10, which
reads as under, only defines a temporary employee.
“Rule 10 : Categories of Employees : (1) Employees shall be
permanent or non-permanent. Non-permanent employees may be
either temporary or on probation.
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(2) A temporary employee is one who is appointed to a
temporary vacancy for a fixed period.”
If temporary employee is one who is appointed to a temporary vacancy
for a fixed period, the converse would be that a permanent employee is
one who is appointed to a permanent vacancy which is not limited by
any period of time. Probationers would be obviously those waiting to be
appointed to a permanent vacancy after successful completion of
probation, having been recruited to fill a permanent vacancy in terms of
Section 5 of the Maharashtra Employees of Private Schools (Conditions
of Service) Regulation Act. The material question would, therefore, be if
the vacancy to which the petitioner was appointed was permanent
vacancy – i.e. without any limit of time. And, according to the
respondent, it was not, since recognition to the School itself was on an
year to year basis. Therefore, a vacancy in such a School would be a
clear, but not a permanent vacancy, which would acquire permanency
once the School receives recognition not limited by any fixed period.
18.1 The learned counsel for the petitioner has placed reliance
on the judgment of this Court in The Maharashtra Shikshan Sanstha
& Anr. v. The Presiding Officer, School Tribunal & Ors. [2007(2)
ALL MR 269], in which this Court has observed as under :
“Para 1 : …The question about the effect of temporary appointment
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or time bound appoint made by the management vis-a-vis the
provisions of Section 5 of the Maharashtra Employees of Private Schools
(Conditions of Service) Regulation Act, 1977, (hereinafter referred to as
the Act) arise in both these writ petitions.”
“Para 27 : The judgment of the Hon’ble Apex Court in Hindustan
Education Society’s case (supra) is also considered by the Division
Bench of this Court in Anna Manikrao Pethe [1998(3) ALL MR 155]
(supra), therein in paragraph 14 the Division Bench has noticed that the
Hon’ble Supreme Court has held that temporary appointees are not
entitled to claim permanent status until and unless such permanent
vacancies are filled in as per Section 5 of the MEPS Act. The Division
Bench notices that the facts in the case of Hindustan Education
Society’s case reveal that employee there was untrained teacher and
during the relevant three years, he was appointed on purely temporary
basis. As already mentioned above, I have considered this judgment
also in judgment in High School Education Society [2005(2) ALL
MR 138] (supra) and found that the judgment does not by lay down a
proposition that all appointments made by the management mentioning
a particular time limit in appointment order do not become temporary
appointments. Merely because appointment order uses the word
“temporary” or “till particular date or session end” or provides for
automatic termination, it does not become a temporary appointment in
terms of rule 10 of MEPS Rules and therefore can be viewed as
appointment on probation.”
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“Para 28 : Under Rule 10 of these rules, employees are categories as
under :–
permanent … non-permanent
temporary ……. probationer.
A “temporary employee” has been defined in Rule 10 as
one who has been appointed to a temporary vacancy for a fixed period.
Can it be said that respondent was appointed to a temporary vacancy?
The answer must be clearly in the negative. The appointment could be
temporary in the sense that she was going to be on probation for a
certain number of years. That however did not change her status from
that of a probationer to a temporary hand.”
“Para 38 : It is therefore clear that in the facts of Hindustan Education
Society’s case (supra), the employee was not holding D.Ed. qualification
and therefore was untrained and he could not have been appointed
permanently to fill in clear vacancy. He was, therefore, being appointed
on year to year basis. It is apparent that these facts were not brought
to the notice of this Court when it decided Writ Petition No.3488 of 1999
(Bombay) on 07-07-1999. However, this Court was aware of the
implications arising and therefore thought it fit that matter should be
decided once for all by the Hon’ble Apex Court and hence granted leave
to employee to appeal. The employee in that case was in service and
this Court protected his services for a period of eight weeks. I,
therefore, find that reliance upon the judgment of Hindustan Education
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Society’s case (supra) or said unreported judgment dated 07-07-1999
by learned counsel for the petitioners is clearly erroneous. The said
judgments cannot be construed to lay down a proposition which does
not emerge from reading of Section 5(1) and 5(2) of the Act or Rule 10
of the Rules.”
18.2 This judgment was followed in Yogeshwar Vikas Sanstha
and others v. Rajendra T. Shinde and another [2007(6) Mh.L.J.
698 = 2008(1) Bom CR 297], on which the learned counsel for the
petitioner relied.
“Para 1 : …Respondent No.1 was appointed on 26-7-1995. The
appointment order issued to him mentioned that he was appointed
temporarily from 28-7-1995 to 30-4-1996. …”
“Para 6 : A perusal of the appointment order which is placed on
record indicates that the order was issued on 25-7-1995. The
appointment order further mentions that respondent No.1 was being
appointed for the period from 28-7-1995 to 30-4-1996. However, the
Tribunal has concluded on the basis of the evidence and other material
on record that there was a clear permanent vacancy which was
available and, therefore, respondent No.1 ought to have been
appointed to the post as a probationer. This is a finding of fact which
need not be disturbed by the Writ Court. Under section 5(2) of the
MEPS Act an employee who is appointed against a permanent, clear
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vacancy is liable to be appointed on probation for two years. Thus the
initial appointment of respondent No.1 ought to have been for a
duration of 2 years as a probationer. He would thereafter be entitled to
be deemed permanent under the provisions of the Act. The Tribunal
has also rightly held that the termination of service was in breach of the
MEPS Rules and hence, the order of termination was bad. The Tribunal
has rightly concluded that the petitioner had compelled respondent
No.1 to resign from duty and in these circumstances came to the
conclusion that the termination was bad.”
“Para 7 :
The learned advocate for the respondents brings to my
notice the judgment of a learned Single Judge of this Court in the case
of The Maharashtra Shikshan Sanstha and anr. vs. The Presiding Officer,
School Tribunal and ors., 2006(7) Mh.L.J.1 = 2007(2) All MR 269 where
the learned Single Judge (B.P. Dharmadhikari, J.) sitting at Nagpur
Bench has held that merely because the appointment order uses the
word “temporary” or provides for automatic termination, it does not
become a temporary appointment. What is required to be noticed
according to the learned Judge is the character of such an appointment;
whether the appointment has been made against a clear permanent
vacancy or not. The use of the word “temporary” does not indicate that
the appointment is in fact a temporary appointment in terms of Rule 10
of the MEPS Rules and therefore, such an appointment is to be viewed
as an appointment on probation. In the present case, there is a finding
of fact recorded by the School Tribunal that the respondent was
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appointed against a clear vacancy. That being the position, though the
letter of appointment does mention that the appointment is only for a
specified period, the appointment must be considered as one on
probation.” (Emphasis supplied).
18.3 It may be noted that on facts the Court had concluded that
the vacancy was not only clear but also permanent and hence there
would be no difficulty in reconciling it with judgments of Supreme Court
in Hindustan Education Society and Bharatiya Gramin
Punariachana Sanstha.
19.1 The learned counsel for the petitioner relied on a judgment
of this Court in Matoshri Ramabai Ambedkar Vidyarthi Vasatigruh
Trust and another v. Bharat D. Hambir and another [2009(2)
Mh.L.J. 121], in which this Court has very forcefully brought to the fore
the ill effects of giving a free hand to unethical managements in the
matter of appointment of teachers in the following words :
“Para 5 : … Firstly, it was submitted that the first respondent was
not appointed on probation, but was a temporary employee. The
School Tribunal has noted that in the present case, the first respondent
was appointed after an advertisement was issued on 19th April, 2004
and interviews were held on 7th June, 2004. The first respondent was
appointed with effect from 14th June, 2004 as an Assistant Teacher.
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The first respondent is a duly qualified teacher holding the B.A. and
B.Ed. qualifications. The appointment of the first respondent was
approved by the Social Welfare Officer on a probationary basis. In fact,
it was the contention of the petitioners that the work of the first
respondent during the period of probation was not satisfactory. This
aspect would be dealt with later. However, it is evident that even the
petitioners accepted and treated the appointment of the first
respondent as being on probation. The law in this regard is clear.
Section 5 of the Maharashtra Employees of Private Schools (Conditions
of Service) Regulation Act, 1977 obligates every management of a
private school to fill up a permanent vacancy by appointment of a duly
qualified candidate to fill such vacancy and under sub-section (2) of
section 5, every person appointed to fill a permanent vacancy shall be
on probation for a period of two years. Upon the satisfactory
completion of the period of probation, there is a deeming fiction under
the statute by which an employee is deemed to have been confirmed.
A permanent vacancy has to be filled in by the appointment of a duly
qualified candidate and every candidate appointed to fill a permanent
vacancy has to be appointed on probation.”
19.2 It may be seen that on facts it was held in that case that
the teacher was appointed on probation after selection pursuant to an
advertisement to fill up a permanent vacancy, and his appointment
was treated as such by the Management. The further observations of
the Court have to be read in this factual context. The Court held :
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“Para 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 the 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 turn 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
managements 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 a negation of statutory intent. Once a
permanent vacancy arises, a management is duty bound statutorily to
fill it up by appointing a duly qualified candidate on probation. The
vacancy must be advertised to allow equal opportunity to eligible
candidates. A regular process of section 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
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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 an 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 of subversion because they perpetuate a
regime 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
emphasise 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.”
“Para 9 : In the present case, it was the case of the management
that the first respondent had without sufficient cause failed to apply for
leave and had remained absent. The management was entitled to
treat this as a breach of discipline and to hold a disciplinary enquiry to
establish the allegation. Until the misconduct was proved, it was only
an allegation. Nothing of the kind was done. The School Tribunal has
reviewed the material which has come on record in great deal of detail
and noted that it is only after the first respondent filed a complaint
against the management that it prevented him, with effect from 8th
September, 2007, from signing the Muster Roll. The grievance of the
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first respondent is that the management was resorting to unethical
practices by making extortionate demands. The Tribunal has for
cogent reasons entered a finding of fact that there is substance in the
grievance of the first respondent.”
“Para 10 : The judgment of the Tribunal is consistent with the law laid
down by the Division Bench in Priyadarshini Education Trust vs. Ratis
(Rafia) Bano, 2007(6) Mh.L.J. 667. The first respondent was duly
selected; he was appointed in a clear and permanent vacancy and he
was duly qualified. The termination was wholly arbitrary.”
19.3 In this judgment, there was no occasion to consider the
judgments of the Supreme Court in Hindustan Education Society or
Bharatiya Gramin Punarrachana Sanstha.
20.1 The learned counsel for the respondent has also cited a
judgment delivered by me in Janta Education Society and another
v. Prakash Babarao Shingane and another [2010(1) Mh.L.J.
329], in the following factual matrix :
“Para 2 : Facts, which are material for deciding this petition, are as
under :
Respondent No.1 was M.Com., B.P.Ed. when he was first
appointed in a Junior College on 2-8-1985 on a fixed salary of Rs.250/-
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per month for a period up to 30-6-1986. His appointment was
approved by the Deputy Director of Education for the subjects of
Commerce and Physical Education on a pay scale of Rs.250-450/- for
the Academic Session 1985-86. This appointment was continued by
another order dated 28-6-1986 on a fixed pay of Rs.500/- for the
Academic Session from 1-7-1986 to 8-5-1987. This too was approved
by the Deputy Director of Education for the Academic Session 1986-97.
There is a dispute about the next appointment order dated 9-7-1987.
According to the petitioners, respondent No.1 was appointed by order
24-3-1988.
dated 9-7-1987 on a clock-hour basis for the period from 9-7-1987 to
By order dated 17-10-1988, the Deputy Director of
Education approved this appointment on a clock-hour basis at the rate
of Rs.12/- per hour with effect from 9-7-1987 till the end of the
Academic Session 1987-88. However, according to respondent No.1,
this order was fabricated and in fact he was appointed from 9-7-1987 to
8-7-1987 in a clear vacancy. Respondent No.1 relies on a undated
order signed by the President of the Society, which does not mention
any pay scale, whereas the petitioners rely on an order signed by the
Principal of the College.”
20.2 After considering several judgments (many of which have
been already noted in preceding paragraphs), the following conclusion
was drawn :
“Para 24 : I have considered these erudite judicial pronouncements. I
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have serious doubts if the findings of the Apex Court, in not one, but
two judgments, after nothing the provisions of section 5 of the MEPS
Act, could be ignored and it could still be held that an appointment in a
clear vacancy must be on probation. The order of appointment, which
was under consideration of the Apex Court in Hindustan Education
Society and another vs. Sk. Kaleem Sk. Gulam Nagi and others has
already been quoted in preceding paras. Teachers, who appointment
was question in Bharatiya Gramin Purnarrachana Sanstha vs. Vijay
Kumar and others, was selected and appointed after following
procedure for two years in a clear vacancy. Yet, the Supreme Court in
these two cases did not hold that the appointments must be held to
have been made on probation. It may be audacious for me to ignore
this and yet follow contrary findings, which could be reconciled only by
distinguishing between a clear vacancy and a permanent vacancy.
Every clear vacancy need not be mistaken for a permanent vacancy.
When a new School starts, teachers will have to be appointed even
before students are enrolled. Such appointments would obviously be in
clear but temporary vacancies, since no one would be able to predict if
the School would succeed or fail.”
21. The learned counsel for the respondent also relied on my
judgment in Liberal Education Society, Nagpur and another v.
Vrushali w/o Suresh Aole and others [2010(1) Mh.L.J. 491], too, a
similar conclusion was drawn. Rather than re-writing the comments on
similar arguments advanced, I would quote following two paragraphs
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from the judgment as under :
“Para 11 : The learned counsel for petitioners submitted that both
these judgments of the Hon’ble Supreme Court would rule out the
proposition that under section 5 of Maharashtra Employees of Private
Schools (Conditions of Service) Regulation Act, an appointment to a
post on a clear vacancy had to be on probation. He pointed out that
neither in Yogeshwar Vikas Sanstha nor in Matoshri Ramabai Ambedkar
Vidyarthi Vasatigruh Trust were these judgments of the Hon’ble
Supreme Court noticed. He submitted that had the judgments of the
Hon’ble Supreme Court in Hindustan Education Society, and particularly
in Bharatiya Gramin Punarrachana Sanstha, been noticed by the
learned Judges they would certainly have taken a different view.”
“Para 12 : While the causation in Matoshri Ramabai Ambedkar
Vidyarthi Vasatigruha, namely that purposive interpretation should be
preferred is extremely persuasive, the fact that the Hon’ble Supreme
Court, after considering provisions of Section 5 of Maharashtra
Employees of Private Schools (Conditions of Service) Regulation Act and
the fact that the employee in Bharatiya Gramin Punarrachana Sanstha
was selected after the post was advertised and was appointed for two
years in clear vacancy, observed towards the end of para 6 that
provision of section 5 of Maharashtra Employees of Private Schools
(Conditions of Service) Regulation Act “applies to a person who is put
on probation consequent upon his appointment in a permanent
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vacancy” and that the provision did not help the employee because
“secondly, admittedly the first respondent was appointed only for a
period of two academic years of 1996-97 and 1997-98 and was not put
on probation”. It may be seen that in para 3 of the judgment the
Hon’ble Supreme Court had specifically stated as under :–
“On 6-8-2001, this Court issued notice limited to the question as to why
the appointment of the respondent (respondent 1) should not be
confined to the period mentioned in the order of appointment dated
22-6-1996.”
Thus the specific question which Hon’ble Supreme Court
was considering was about confining the appointment to period
mentioned in the appointment order. In face of this, after noticing the
pronouncement of the Apex Court, it may be impermissible for me to
follow contrary view taken by this Court in the two Judgments referred
to in preceding paragraphs.”
22. The object of elaborately dealing with several judgments
cited at the bar was two-fold – first, to check up the correctness of
premises of my earlier decisions in Janta Education Society and
another v. Prakash Babarao Shingane and another, reported at
2010(1) Mh.L.J. 329, and Liberal Education Society, Nagpur and
another v. Vrushali w/o Suresh Aole and others, reported at
2010(1) Mh.L.J. 491, and secondly to find out if there is any conflict in
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the pronouncements of the Supreme Court in Hindustan Eduction
Society and another v. Sk. Kaleem Sk. Gulam Nabi and others,
reported at (1997) 5 SCC 152; and Bharatiya Gramin
Punarrachana Sanstha v. Vijay Kumar and others, reported at
(2002) 6 SCC 707; on the one hand and the judgments of this Court in
Hindi Vidya Bhavan, Mumbai and others v. Presiding Officer,
School Tribunal, Mumbai and others, reported at 2007(6) Mh.L.J.
563; The Maharashtra Shikshan Sanstha and another v. The
Presiding Officer, School Tribunal and others, reported at
2007(2) All MR 269; and Matoshri Ramabai Ambedkar Vidyarthi
Vasatigruh Trust and another v. Bharat D. Hambir and another,
reported at 2009(2) Mh.L.J. 121; on the other.
23. The Supreme Court in its two decisions has referred to the
appointments of persons against clear vacancies and yet held that the
procedure prescribed under Section 5 of the MEPS Act would apply only
to the appointments to fill up permanent vacancies. In Hindi Vidya
Bhavan, Mumbai and others v. Presiding Officer, School
Tribunal, Mumbai and others, reported at 2007(6) Mh.L.J. 563, this
Court was dealing with a case of a wholesale departure by a
Management by resorting to contract workers. In Maharashtra
Shikshan Sanstha and another v. The Presiding Officer, School
Tribunal and others, reported at 2007(2) All MR 269, and
Yogeshwar Vikas Sanstha and others v. Rajendra T. Shinde and
another, reported at 2008(1) Bom CR 297, on facts, the Court was
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considering the question of filling up of a permanent vacancy and,
therefore, obviously procedure prescribed under Section 5 of the MEPS
Act would apply even as per the pronouncements of the Supreme Court
in two cases referred to above.
24. There can be no doubt that the judgment of the Supreme
Court in Hindustan Education Society cannot be construed to lay
down a proposition which does not emerge from Sections 5(1) and 5(2)
of the MEPS Act, as observed in Maharashtra Shikshan Sanstha
[2007(2) All MR 269]. All the same, the fact that the Supreme Court
had noted in para 4 of the judgment that the appointment of the
Teacher was a temporary appointment against a clear vacancy, had
noted the provisions of Section 5 of the MEPS Act and then
unequivocally held in para 6 that the appointment could not be
construed to be a permanent appointment cannot be wished away. The
Apex Court dealt with another similar appointment in Bharatiya
Gramin Punarrachana Sanstha similarly. The principle that emerges
is that the Managements cannot artificially turn permanent vacancies
into temporary vacancies by making appointment thereto for a fixed
period. At the same time, a “clear” vacancy need not be confused for a
“permanent” vacancy, which would be available without any limit of
time. And, only while filling a permanent vacancy procedure prescribed
under Section 5 of the MEPS Act would have to be followed.
25. In Matoshri Ramabai Ambedkar Vidyarthi Vasatigruh
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Trust and another v. Barat D. Hambir and another, reported at
2009(2) Mh.L.J. 121, on facts, the Court had found that the
appointment was on a probation basis, i.e. obviously to fill up a
permanent vacancy and had been approved by the concerned authority
as appointment on probation. Therefore, there was no question of any
departure from the procedure prescribed in Section 5 of the MEPS Act.
26. These judgments do not consider the judgment of the
Division Bench of this Court in Mathuradas Mohta College of
Science, Nagpur v. R.T. Borkar and others, reported at 1997(2)
Mh.L.J. 168, which is not shown to have been overruled. The
observations in para 7 therein, which read as under, would make it
impermissible to create a fictional appointment on probation.
“Para 7 : It is further to be noted that the post was of teacher in
Botany subject which was not the subject of the respondent No.1 as the
respondent No.1 is M.Sc. In Zoology and, therefore, it cannot be said
that the respondent No.1 was duly qualified for the said post. Apart
from this, even assuming that there was a clear vacancy, the order
issued was purely temporary and, therefore, not proper order.
However, it will be an error to treat the said order as an order under
section 5 of the Act, viz. the order for a period of two years, probation.
Such legal fiction we do not find anywhere in the Act and the Rules and,
therefore, the finding recorded by the Tribunal that the order is covered
under section 5 of the MEPS Act is not correct.”
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In face of this judgment of the Division Bench, it would be impermissible
to follow contrary views taken by the learned Single Judges.
27. In Shri Sadguru Dnyan Prasarak Shikshan Sanstha
and another v. Presiding Officer, School Tribunal, Amravati, and
others, (Writ Petition No.3444 of 1994, decided on 25-11-2009),
a learned Single Judge of this Court had, in my view, rightly concluded
that if the School itself had temporary recognition from year to year,
there was no question of there being any permanent vacancy. At the
cost of repetition, it has to be pointed out that the permanent vacancy
would be one which would not be limited by any period of time. Apart
from new Schools, which receive recognition from year to year, where
vacancies would be clear but not permanent, there could be instances
of Schools, where there is a spurt in admissions, resulting a need to
engage more teachers on the basis of workload. But since this
workload may fluctuate for a period of time before stabilizing, there
could be some vacancies, which would be temporary, till it could be said
– say after about three to five years – that the strength is unlikely come
down. In every service, while fixing cadre strength, there are always
some permanent posts and some additional or temporary posts to take
into account the fluctuations in the requirement from time to time. The
State Government could undoubtedly examine this aspect and clarify as
to the number of vacancies, which could be considered as temporary
vacancies even in established Schools where the student-strength
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increases.
28. It would be easy to say that if the strength is reduced, the
teacher concerned could be accommodated in another School under the
scheme of MEPS Act and that such a teacher could not be retrenched till
the workload hits a zero. But it cannot be forgotten that this would
throw additional burden on the exchequer which ultimately bears the
burden of paying salaries of teachers. Also it is easy to say that the
teacher retrenched from one School ought to be adjusted in another
places.
School, without realizing that the Schools are located at different
The social milieu in which the School is located may be
different, and the quality of teacher as distinguished from qualifications
required in different Schools may be different. A graft of such a teacher
– say from metropolis of Bombay to a tribal area, say Dahanu or
metropolis of Nagpur, to a School in tribal area in Gadchiroli, may not
work to the advantage of the students and the teachers. Therefore,
rather than insisting upon filling up of several clear vacancies in the
manner prescribed under Section 5 of the MEPS Act, it would be better
to restrict the mandate of Section 5 only to permanent vacancies.
29. The learned counsel for the petitioner next submitted that
irrespective of the terms of appointment order, the petitioner was
entitled to be appointed on probation under Rule 9(9) of the
Maharashtra Employees of Private Schools (Conditions of Service)
Rules, 1981 (for short, “the MEPS Rules”), as the vacancy was clear and
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he was considered as a candidate belonging to backward class, other
than that for which vacancy was reserved, as a candidate belonging to
such category was not available. The advertisement in response to
which the petitioner had applied and which appeared in daily Lokmat
dated 17-6-1995, clearly shows that vacancy to be filled in was for
SC/ST/NT/VJ category and not OBC category.
30. The learned counsel for respondent Nos.1 and 2 submitted
first, that the School was recognized by the Education Department only
for specific period of one year. Therefore, there was no question of
petitioner being appointed to a permanent post. There is nothing to
sugest that the School had recognition beyond one year when the
petitioner was appointed. Secondly, he submitted that the petitioner
was not appointed from OBC category because SC/ST/NT/VJ candidate
was not available. No such claim was made by the petitioner in appeal
before the School Tribunal and in fact the respondents had claimed in
their reply before the Tribunal that the petitioner was considered from
open category. The learned counsel submitted that in any case, in
view of the judgment of this Court in Gajanan Uddhaorao Garole v.
State of Maharashtra and others, reported at
2009(5) Mh.L.J. 300, it is impermissible to appoint an OBC candidate
against SC/ST/NT/VJ vacancy.
31. The learned counsel for the petitioner submitted first, that
the very fact that the respondent volunteered in the reply before the
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Tribunal that the appointment was considered from open category
creates a suspicion. He submitted that “Roster” approved by the
Education Officer would have been the best evidence to show if the
petitioner’s appointment was in fact considered against OBC vacancy.
Roster was available with the respondent, which was not produced,
and the Tribunal should have held that the petitioner was appointed as
OBC candidate against the vacancy reserved for SC/ST/NT/VJ. The
learned counsel submitted that the Tribunal could not have expected
the petitioner to produce roster and should have drawn adverse
inference for Management’s failure to produce copy of roster. For this
purpose, the learned counsel for the petitioner relied on the judgment
of this Court in Bhagwan Shikshan Prasarak Mandal, Aurangabad
and others v. Rajendra s/o Hemraj Marathe and others, reported
at [2008(4) Mh.L.J. 464]. The facts were stated to be as under :
“Para 2 : According to the petitioner/management :–
(a) The petitioner was appointed for the first time on
20-6-1994, the post was meant for reserved
category candidate, however, the management did
not mention the said fact in the appointment order.
(b) After completion of two years’ service, the petitioner
was issued a fresh appointment order dated
24-6-1996, which admittedly mentions that this
time, he is given appointment on probation of two
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48years against a reserved vacancy.”
The Court observed in this context in paras 9, 11, 13 and 16 as under :
“Para 9 : The best evidence of fact of post being reserved is of
document i.e. roster which is a document required to be maintained by
the management and to be approved by Government Officers who are
vested with the powers and duty of achieving the object of ensuring
the due and proper reservation as mandated by the Constitution of
India and translated into rules under the Act in question.”
“Para 11 : The roster to be so maintained has to be not just best but
only evidence for proof of fact of reservation. The petitioner has
refrained from bringing on record the said original roster which is
expected to be duly certified by the Government authorities.”
“Para 13 : The petitioner has thus withheld best evidence and desires
that initially the Tribunal, should have accepted their word that the
post was reserved and now wants this Court to do it.”
“Para 16 : The fact which was jurisdictional and pivotal is, as to
whether vacancy in question was a reserved vacancy and the
petitioners have failed to discharge their burden. It is therefore liable
to be held that the post on which respondent employee was appointed
was not a vacancy meant for a candidate of reserved category.”
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32. In this context, the learned counsel for the petitioner
submitted that this error could be corrected by this Court in exercise of
its power to issue a writ of certiorari and for this purpose, relied on a
judgment in Chairman Shri Chhatrapati Shivaji Maharaj Shikshan
Sanstha and another v. Chandrashekhar S. Giwari and others
[2007(4) Mh.L.J. 68]. The facts unfolded were as under :
“Para 2 : Respondent No.1 herein was appointed as a Peon on
probation by an order dated 1st February, 1995 for a period of two
years in the petitioner No.2 school run by the respondent No.1 Trust.
The said appointment of respondent No.1 was approved by the
Education Inspector vide his order dated 15-11-1995 for one academic
session i.e. till the expiry of 30th April, 1996 subject to the condition
that backlog should be filled in.”
“Para 3 : At this juncture, it will be relevant to note that the
appointment of the respondent No.1 as a Peon was in a permanent
post which became available on account of promotion of one Shri
Sawant to the post of Laboratory Assistant. The petitioner-Trust had
adopted unanimous resolution to appoint and absorb respondent No.1
in the said vacant post of Peon. By virtue of the very same resolution,
Trust resolved to appoint one more peon on the newly created
additional post of Peon reserved for such category.”
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“Para 4 : The services of the respondent No.1-Peon came to be
terminated by an order dated 29th March, 1996 with effect from 30th
April, 1996.”
In the context of these facts, the Court ruled as under, as
to the power of issuing a writ of certiorari :
“Para 36 : The writ of Certiorari can be issued to correct an error of
law. But it is essential that it should be something more than a mere
error; it must be one which must be manifest on the face of the record
Hari Vishnu Kamath vs. Ahmed Ishaque, AIR 1955 SC 233.
When Certiorari will be issued :–
(1) For correcting errors of jurisdiction as when an inferior
Court or Tribunal acts, without jurisdiction or in excess of it
or fails to exercise it.
(2) When the Court or Tribunal acts illegally in the exercise of
its undoubted jurisdiction, as when it decides without
giving any opportunity to the parties to be heard or
violates the principles of natural justice.
(3) The Court issuing a writ of Certiorari acts in exercise of a
supervisory and not appellate jurisdiction. One
consequence of this is that the Court will not review
findings of fact reached by the inferior Court or Tribunal,
even if they be erroneous.
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(4) An error in the decision or determination itself may also be
amenable to writ of Certiorari, if it is a manifest error
apparent on the face of the proceedings, e.g., when it is
based in clear ignorance or disregard of the provisions of
law. In other words, it is a patent error which can be
corrected by Certiorari but not mere wrong decision.”
“Para 37 : This is the principle that a Court; which has jurisdiction
over a subject-matter, has jurisdiction to decide wrong as well as right
and when the Legislature does not choose to confer a right of appeal
against that decision it would be defeating its purpose and policy, if a
superior Court were to rehear the case on the evidence and substitute
its own findings in “Certiorari”.”
33. The findings of the School Tribunal would have to be
examined bearing these parameters in mind.
34.1 The learned counsel for the respondent relied on the
judgment of this Court in Sharad Balaji Mankar v. Presiding
Officer, School Tribunal, Amravati, and others (Writ Petition
No.2767 of 1996 Decided by Hon’ble Shri Justice B.P.
Dharmadhikari on 6th November, 2006). The relevant facts in the
said case as summarized in para 2 are as under :
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“Para 2 : The petitioner approached the School Tribunal, by filing
Appeal on 20.04.1994 challenging order of termination given to him
allegedly on 16.4.1994. The order of termination is dated 23.3.1994.
He contended that he was working since 8.1.1992 and he was
appointed against the clear vacancy. No order of probation as such
was ever given to him. He has contended that thus from 8.1.1992, till
termination he has worked and was therefore a permanent employee,
and the management could not have terminated him abruptly. The
management in its reply stated that the post was reserved for
Scheduled Caste/Scheduled Tribe and petitioner who was belonging to
open category came to be selected as candidate from reserved
category was not available. They have pointed out that because of
this, he was not given any permanent appointment order or
appointment order on probation and his appointment was only till
session end. The School Tribunal has after hearing both the sides
found that the vacancy was reserved for scheduled caste/scheduled
tribe category and as candidate from that category was not available,
petitioner was considered for appointment. …”
34.2 In the context of these facts, the Court held :
“Para 8 : Perusal of Rule 9[9][a] of the Rules, as also the judgment
on which the learned counsel for petitioner has placed reliance, shows
that when it is not possible to fill in any particular post from the
category from which the vacancy arises, it could be filled in from other
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remaining category as specified in Sub-rule 7, and if no person from
such other category is available then only the post can be filled in
temporarily or on year to year basis by a candidate not belonging to
backward class. It is therefore, apparent that the rule requires
assertion of certain facts. The essential fact which the petitioner
therefore ought to have established before the School Tribunal that he
belongs to other backward class, as a candidate belonging to that
category he was entitled to appointment on reserved post. As that has
not been done, as the School Tribunal has not said anything about it,
mere contention that he belongs to other backward class cannot be
appreciated to apply the provisions of Rule 9[9][a], here in the Writ
Petition for the first time. In the circumstances, I do not find that any
interference is warranted in the judgment of School tribunal. Writ
Petition is accordingly dismissed. No costs.”
35. The learned counsel for the respondent, therefore,
submitted that the petitioner ought to have established two things
before the Tribunal : first, that he belongs to OBC and as a candidate
belonging to that class, he was entitled to appointment. He pointed
out that no such claim was made by the petitioner before the Tribunal
and the petitioner cannot take advantage of the fact that the
Management clarified that the petitioner was not so appointed as an
OBC candidate.
36. Since there was no issue or dispute, there was no question
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of tendering evidence, and consequently, no question of drawing
adverse inference due to non-production of roster by the respondent.
It cannot, therefore, be said that the Tribunal should have held, or this
Court should hold, that the petitioner was appointed as an OBC
candidate against a vacancy for SC/ST/VJ/NT. The learned counsel for
the respondent, therefore, submitted that the judgments on which the
learned counsel for the petitioner placed reliance, which are being
discussed in paras to follow, would not be of any help.
37.
The learned counsel for the respondent further submitted
that Rule 9(a) of Rule 9 of the MEPS Rules, which is only an enabling
provision, does not confer right on a person not belonging to a
category for which the post is reserved for being appointed to such a
post. He submitted that this provision, which was meant to ensure that
the posts are filled up, if allowed to be abused by permitting
appointments of candidates belonging to the category other than that
for which the post is reserved, would result in breaking down the entire
scheme of reservation. He pointed out that different percentage of
posts are reserved for different categories and it is not that all the
reserved posts could be filled up by candidates belonging to any of the
reserved categories. An an illustration, he submitted that even
Nomadic Tribes could not be considered as one class. The State has
prescribed reservations of 2.5% for Nomadic Tribe Category B; 3% for
Category C; and 3% for Category D. This, according to the learned
counsel, was meant to ensure that even amongst the Nomadic Tribes,
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there is no imbalance and one caste or community does not eat up the
entire quota meant for Nomadic Tribes as a whole. He submitted that
if a person belonging, to say OBC, was allowed to be appointed on a
post meant for Scheduled Caste, merely because a candidate from
Scheduled Caste was said to have been not available, it would result in
encroachment on the posts meant for Scheduled Caste. Therefore,
according to him, first, in face of Division Bench judgment in Gajanan
Uddhaorao Garole v. State of Maharashtra and others, reported
at 2009(1) Mh.L.J. 300, and secondly, also on account of the
observations of the Division Bench in Priyadarshini Education Trust
and others v. Ratis (Rafia) Bano d.o Abdul Rasheed and others,
reported at 2007(6) Mh.L.J. 667, discussed earlier, such
appointments can be only temporary and not permanent.
38.1 In Gajanan Uddhaorao Garole v. State of Maharashtra
and others, reported at [2009(5) Mh.L.J. 300], the relevant facts
could be gathered from paras 2 and 5 as under :
“Para 2 : This is an appeal by a Teacher whose services were
terminated by the respondents. The learned Single Judge of this Court
has held that the School Tribunal has rightly dismissed the appeal filed
by the appellant because the appointment order was not signed by the
Head Master and though he is an OBC candidate, he was appointed on
a post which was reserved for a candidate belonging to Scheduled
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Tribe category.”
“Para 5 : Shri Parchure, learned counsel for the respondent points
out that after this Court set aside the roster and remanded the matter
for reconsideration by the backward Class Cell, it has been found that
the post to which the appellant appointed was in fact reserved for a
scheduled Caste category candidate and not for an OBC category
candidate to which the appellant belongs. This fact is evident also
from the judgment of this Court in Contempt Petition No.133 of 2008.”
38.2
The Bench held in para 6 as under :
“Para 6 : Thus, we find no substance in the contention of the learned
counsel for the appellant. We, accordingly approve the finding of the
learned Single Judge in this regard. No other point has been urged on
behalf of the appellant.”
39. The learned counsel for the respondent submitted that in
face of this pronouncement by a Division Bench, a candidate from OBC
category (or any other reserved category) could not claim as of right
appointment to a post meant for another category. Even so, it will be
useful to examine the numerous judgments cited by both the learned
counsel on the question of appointment of candidate from one
backward class against a vacancy meant for another backward class.
But before going to the judgments, relevant part of Rule 9 of the MEPS
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Rules may be reproduced for ready reference as under :
Rule 9 of the MEPS Rules :
“Appointment of staff – (1) The teaching staff of the school shall be
adequate having regard to the number of classes in the school and the
curriculum including alternative courses provided and the optional
subjects taught therein.
(2) …
(3) …
(4) …
(5) …
(6) …
(7) The Management shall reserve 52 per cent. of the total number of
posts of the teaching and non-teaching staff for the persons belonging
to the Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta
Jatis), Nomadic Tribes, Special Backward Category and Other Backward
Classes as follows, namely :-
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(a) Scheduled Castes 13 per cent;
(b) Scheduled Tribes 7 per cent;
(c) De-notified Tribes (A) 3 per cent;
(d) Nomadic Tribes (B) 2.5 per cent;
(e) Nomadic Tribes (C) 3 per cent;
(f) Nomadic Tribes (D) 2 per cent;
(g) Special Backward Category 2 per cent;
(h) Other Backward Classes 19 per cent;
ig --------------
52 per cent
(8) For the purpose of filling up the vacancies reserved under
sub-rule (7) the Management shall advertise the vacancies in at least
one newspaper having wide circulation in the region and also notify
the vacancies to the Employment Exchange of the District and to the
District Social Welfare Officer and to the associations or organisations
of persons belonging to backward classes, by whatever names such
associations or organisations are called and which are recognised by
Government for the purposes of this sub-rule requisitioning the names
of qualified personnel, if any, registered with them. If it is not possible
to fill in the reserved post from amongst candidates, if any, who have
applied in response to the advertisement or whose names are
recommended by the Employment Exchange or the District Social
Welfare Officer or such associations or organisations as aforesaid or if
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no such names are recommended by the Employment Exchange or the
District Social Welfare Officer or such associations or organisations as
aforesaid within a period of one month the Management may proceed
to fill up the reserved post in accordance with the provisions of sub-
rule (9).
(9)(a) In case it is not possible to fill in the teaching post for which a
vacancy is reserved for a person belonging to a particular category of
Backward Classes, the post may be filled in by selecting a candidate
from the other remaining categories in the order specified in sub-rule
(7) and if no person from any of the categories is available, the post
may be filled in temporary on an year to year basis by a candidate not
belonging to the Backward Classes.
(b) In the case of a non-teaching post, if a person from the
particular category of Backward Classes is not available, the
Management shall make efforts with regular intervals to fill up the post
within the period of five years and the post shall not be filled up during
that period by appointing any other person who does not belong to the
respective category of Backward Class. …”
40. The learned counsel for the petitioner relied on the
judgment of the Supreme Court in Shakuntala Ganpatsa Shirbhate
v. Industrial Weaving Co-operative Society and others, reported
at [1994 Mh.L.J. 218], in which facts were as under :
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“Para 2 : The appellant was appointed as a teacher in Biology
initially for a period of one year. The appointment was extended from
year to year several times. The last order passed in her favour in 1987
mentioned the appointment ‘until further orders’. On 1-4-1988 the
services of the appellant were terminated which she challenged by
filing an appeal before the School Tribunal under section 9 of the
Maharashtra Employes of Private Schools (Conditions of Service)
Regulation Act of 1977 (hereinafter referred to as the ‘Act’). In
pursuance of a stay order passed by the Tribunal the appellant
continued in service during the pendency of the appeal, which was
dismissed on 8-11-1990. The appellant, thereafter, approached the
High Court with a writ petition which was dismissed by the impugned
judgment.”
“Para 4 : …The learned counsel for the appellant before us has
contended that assuming the other findings recorded against her by
the High Court to be correct, she is still entitled to regular appointment
in view of Rule 9(a) of the Maharashtra Employees of Private School
(Conditions of Service) Rules, 1981, which is quoted below :-
“(9)(a) In case it is not possible to fill in the teaching post for
which a vacancy is reserved for a person belonging to a
particular category of Backward Classes, the post may be filled in
by selecting a candidate from the other remaining categories
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in the order specified in sub-rule (7) and if no person from
any of the categories is available, the post may be filled in
temporarily on an year to year basis by a candidate not
belonging to the Backward Classes” …
Since the appellant is a member of one of the backward classes
referred to in the said Rule, she was entitled to a regular appointment
in the very first year when no person belonging to a Nomadic Tribe was
available.”
“Para 5 :
The argument of the learned counsel appears to be well
founded. Admittedly the respondent No.4 was available for
appointment only in 1988. On the first occasion when the post was
being filled up, there was no member of a Nomadic Tribe available for
appointment. In the absence of a candidate belonging to a Nomadic
Tribe, the Rule enjoins year to year appointment only if an available
candidate does not belong to the backward classes. The question,
therefore, is whether the appellant belongs to a backward class.”
41. The Apex Court then remitted the case back to the High
Court for a fresh decision after deciding the question as to whether the
appellant belongs to backward class on the basis of affidavits or to call
for a finding from the School Tribunal.
42. The learned counsel for the petitioner submitted that in
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face of this judgment, it is impermissible to contend that a candidate
belonging to one backward class could not be adjusted permanently
against the vacancy meant for another backward class. Following this
judgment, similar view was taken by a Division Bench of this Court in
D.G. Ruparel College v. State, reported at 1998 II CLR 402, on
which the learned counsel for the petitioner relied. In that case
grievance was about failure of the Education Department to accord
approval to appointment of an OBC candidate against a vacancy meant
for NT candidate on a regular basis for two years. In the third year, a
candidate belonging to NT category was selected by the Management,
which sought approval for his appointment.
43.1 The learned counsel for petitioner also cited on the
judgment of the Supreme Court in Kankavali Shikshan Sanstha and
others v. M.R. Gavali and others, reported at [2006(1) Mh.L.J.
713] (which followed the judgment in Shakuntala’s case), in which
facts were as under :
“Para 3 : The short facts of the case are as follows :–
Respondent No.1 – M.R. Gavali was appointed as Assistant
Teacher in the S.M. Junior College w.e.f. 18-6-1994 on purely temporary
basis for the academic year 1994-1995 i.e. for the period from
18-6-1994 to 2-5-1995 against the backlog of SC/ST and NT category.
Clauses 2, 3, 7 and 8 of the appointment order read as follows :–
“2. Your appointment is purely temporary for a period from
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18-6-1994 to 2-5-1995 in the leave/deputation vacancy after expiry of
the above period your services shall stand terminated without any
notice. OR
3. The terms of your employment and condition 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.
7. Your appointment is conditional subject to the approval of the
Education Department.
8.
This post is reserved for Scheduled Caste and if candidate of that
category will be available, your service will be terminated.”
“Para 5 : The appellant-Institution sought to fill up the backlog
against the reservation by publishing advertisement in the
newspapers. However, the particular backward class candidate was
not available. On account of non-availability of the ST reserved
category candidate, respondent No.1 – M.R. Gavali was again
appointed temporarily on 8-6-1995 for the academic year 1995-96. It
was made clear that the said appointment is liable to be terminated as
and when a candidate from the backward class is made available and
that the said appointment was subject to the approval of the Education
Department.”
43.2 The Court then referred to judgment in Shakuntala’s case,
and observed as under :
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“Para 14 : The law laid down by this Court on the interpretation of
Rule 9(9)(a) is in our view resolves the controversy in the present case.
The first respondent was appointed in 1994. The vacancy was
reserved for an ST candidate. At that stage there was no candidate
belonging to ST available. There is no dispute about the fact that the
first respondent belongs to the Hindu Mali community which is an OBC.
In the circumstances, in terms of the provisions of Rule 9(9)(a) since no
other candidate belonging to ST was available, the first respondent was
entitled to appointment on a regular basis. This Court, in the above
case, held that in the absence of a candidate belonging to the reserved
concerned, the rule enjoins year to year appointment only if a available
candidate does not belong to a backward class. The respondent
belonging as he does to a backward class was entitled to a regular
appointment. The subsequent appointment of P.B. Lohar, the 3rd
respondent herein again, operates to displace the first respondent
because in any event much prior thereto the first respondent had duly
crystallised the right. In any event, it has not been demonstrated
before this Court that the 3rd respondent was appointed subsequently
in the vacancy created by the termination of the first respondent.”
44.1 In Jeles Education Society and another v. Shri R.T.
Bhitale and another, reported at [2005(4) ALL MR 944], and
Bhairavnath Shikshan Mandal, Pune and another v. Raju
Haribhau Thombe, reported at 2009(3) Mh.L.J. 605, following the
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pronouncements of the Supreme Court, it was held that a candidate
belonging to a backward class was entitled to be appointed against a
permanent post meant for another backward class, whose candidate
was not available. In Jeles Education Society, this Court also
considered the judgment of the Supreme Court in Hindustan
Education Society and observed as under :
“Para 8 : …The reliance placed on the judgment in the case of
Hindustan Education Society (supra) and Writ Petition No.3488 of 1999
(supra). This judgment does not make a distinction between persons
appointed for a temporary period from the backward classes and from
the open category. However, the interpretation of Rule 9(9)(a) of the
MEPS Rules was not in question in these judgments. A harmonious
reading of the judgments in Hindustan Education Society (supra) and
Shakuntala G. Shirbhate (supra) will indicate that a person belonging to
an open category cannot question his appointment made only for a
temporary period against a reserved vacancy. However, when a
suitable candidate belonging to a particular reserved category is not
available and another from the backward classes is appointed, his
appointment cannot be considered to be a temporary appointment
although the appointment letter stipulates so. In my view, therefore,
the judgment of the School Tribunal which has been impugned in Writ
Petition No.232 of 1993 must be upheld.”
44.2 Even in Bhairavnath Shikshan Mandal, Pune and
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another v. Raju Haribhau Thombe, reported at [2009(3) Mh.L.J.
605], it was held that the judgment of the Supreme Court in
Hindustan Education Society was not applicable in such a situation.
45. The learned counsel for the petitioner relied on the
judgment of this Court in Smt. Gracyamma Johny v. The
Management of Versova Welfare Association High School and
Junior College and others, reported at [1998(1) ALL MR 386].
However, since the question, which the Court was dealing with as
indicated in para (quoted below) was altogether different, it is not
necessary to elaborately discuss this judgment.
“Para 4 : The short point which requires consideration in the present
writ petition is : whether the post of Assistant Headmistress which
became vacant was an isolated post and if so, whether the
Management was right in applying the policy of Reservation and
Roster.”
46. In any case, as a fact, it had not been claimed by the
petitioner that he was appointed as OBC candidate against the vacancy
meant for Scheduled Caste, Scheduled Tribe or Nomadic Tribe
candidate. Therefore, there is no question of his appointment being
considered as permanent in view of the provisions of sub-rule 9(a) of
Rule 9 of the MEPS Rules.
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47. In view of this, it is not necessary to refer to judgments in
Allahabad Jal Sansthan v. Daya Shankar Rai and another,
reported at (2005) 5 SCC 124; State of M.P. v. Anil Dhug, reported
at (2005) 12 SCC 213; U.P. SRTC v. Mitthu Singh, reported at
(2006) 7 SCC 180; and Progressive Education Society
Hinganghat and others v. Nitin Krishnarao Himbalkar and
others, reported at 2006(4) Mh.L.J. 747, on the question of back
wages, on which the learned counsel for the parties relied.
48.
To sum up, first there is no force in the contention of the
petitioner that he had not been served with the appointment order or
that the appointment order, which was produced by the Management
before the Tribunal was untrustworthy. Secondly, the School itself had
recognition only for a period of one year and, therefore, it could not be
said that there was a permanent vacancy, though the vacancy to which
the petitioner was appointed was a clear vacancy. Hence, he could not
be deemed to have been appointed on probation under Section 5 of the
MEPS Act and the terms of his appointment would have been gathered
from the appointment order itself, which was for a fixed period in view
of the judgments in Hindustan Education Society and another v.
Sk. Kaleem Sk. Gulam Nabi and others, reported at (1997) 5 SCC
152, and Bharatiya Gramin Punarrachana Sanstha v. Vijay
Kumar and others, reported at (2002) 6 SCC 707, and the judgment
of the Division of this Court in Mathuradas Mohta College of
Science v. R.T. Borkar and others, 1997(2) Mh.L.J. 168. Lastly, the
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petitioner’s claim that he was appointed against a reserved post as a
candidate belonging to OBC category had not been staked by him
before the Tribunal in explicit terms and the Management had
categorically stated that he had not been so appointed. Non-
production of roster by the Management was not material, first, since
the parties were not at issue on this question and, secondly, since the
burden to prove that he had been appointed as OBC candidate against
the reserved category, lay on him. Hence, it cannot be said that the
Tribunal erred in holding that the petitioner’s appointment was not as
per Section 5(2) of the MEPS Act and that, therefore, the termination of
the petitioner did not warrant interference by the Tribunal.
49. In view of the foregoing, the petition is dismissed.
JUDGE.
Pdl.
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