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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR.
WRIT PETITION NO.3444 OF 1994.
PETITIONERS : 1. Shri Sadguru Dnyan Prasarak Shikshan
Sanstha, Khairgaon Taluka Narkhed,
Distt.Nagpur, through its Secretary Shri
Premraj Daulatrao Shelke, aged 37 years,
resident of Linga, Tq.Warud,Distt.Amravati.
2. The Head Master,
Linga High School, Linga, Tq.Warud,
Distt.Amravati.
VERSUS
RESPONDENTS:1. Presiding Officer,
School Tribunal, Amravati Division, Amravati,
Distt.Amravati.
2. Shankar Balaji Wankhede,
resident of Linga, Tq.Warud, Distt.Amravati.
3. Education Officer (Secondary)
Zilla Parishad, Amravati.
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Shri H.A.Deshpande, Advocate for the petitioners.
Shri R.R.Pillai, Advocate for respondent no.2.
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CORAM : C.L.PANGARKAR,J.
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1. The School Management prefers this writ petition against the
order of the School Tribunal, whereby it has directed the school to
reinstate the respondent with back wages.
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 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
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terminated, he filed an appeal under Section 9 of the M.E.P.S.Act
before the School Tribunal.
3. The appeal was resisted by the present petitioners mainly on
three grounds. First ground was that the school was not
permanently recognized, respondent no.2 did not hold required
qualification of B.Ed. and third; appointment was temporary.
4. The learned Judge of the Tribunal negatived the contentions
raised by the present petitioner and directed reinstatement. Hence,
the present writ petition.
5. I have heard the learned counsel for the petitioners as well as
the respondents.
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.
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7. Learned counsel for respondent no.2 submits before me that
respondent no.2 had worked continuously for three Academic
Sessions and his appointment was in a clear vacancy. He submits
that proof of these two ingredients is enough to treat respondent
no.2 as deemed to be confirmed under Section 5 of the M.E.P.S.Act.
The learned counsel for the petitioners submits, on the other hand,
that there are three reasons which are enough to hold that
respondent no.2 cannot be deemed to be confirmed. The first
ground that is advanced is that the school was newly established
and its recognition itself was for all these three years from year to
year. The second ground is that respondent no.2 did not hold B.Ed.
Degree from recognized University and third; the appointment of
respondent no.2 itself was temporary and from year to year.
8. The learned Judge of the Tribunal has rejected the contention
that, because the school received the recognition from year to year,
the services of respondent no.2 were temporary and from year to
year. According to clause 4.1 and 4.2 of the School Code, a school
upon establishment continues to receive temporary recognition
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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. though
the Secretary), this court observed as follows –
6. Mr.Dharmadhikari, learned counsel, for the
petitioners relied upon a judgment of SupremeCourt 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 fora period of 11 months from 11/6/1992 to
10/5/1993 is a clear vacancy. The Supreme Court
in para no.5 has observed as follows :
” 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
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regards permanent appointments, they are
regulated by sub-sections (1) and (2) of Section 5
of the Act according to which the Management
shall, as soon as possible, fill up, in the manner
prescribed, every permanent vacancy in a private
school by appointment of a person duly qualified to
fill in such vacancy. Every person so appointed
shall be put on probation for a period of two years
subject to the provisions of sub-section (4) and (5).
He shall, on completion of the probation period of
two years, be confirmed.”
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.
7. Mr.Manohar, learned counsel, for the 3rd
respondent submitted that if the managements are
allowed to appoint teachers from year to year on a
temporary basis, it would defeat the purpose of
section 5(2) of the Act. As a broad proposition, this
cannot be disputed. However, each appointment
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would have to be considered case by case. In the
present case, it is clear that the appointment was a
temporary appointment for one year. Thereafter,
there is no appointment and the 3rd respondent
seems to have worked for more than two years
with breaks in the summer vacation. Having regard
to the fact that the School itself had not been
recognized, I find that the appointment cannot be
said to be in a permanent and clear vacancy which
would attract the provisions of Section 5 of the Act.
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 Curt in Mathuradas Mohta
College of Science vs. R.T.Borkar and others, 1997
(2) Mh.L.J.168. In similar situation, the Division
Bench presided over by the Chief Justice Shri
M.B.Shah, as then he was, has in paragraph 7
observed as under :
“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 respondent
no.1 was duly qualified for the said post.
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Apart from this, even assuming that there
was a clear vacancy, the order issued was
purely temporary and, therefore, not properorder. However, it will be an error to treat
the said order as an order under section 5 ofthe 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 th order is covered under
section 5 of the MEPS Act is not correct.”
9. The decision applies on all fores 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.
10. The petitioners have placed on record the Resolution of
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Society by which appointment was approved by the Society. The
petitioners have also placed on record all the three appointment
orders as well as termination orders, though respondent no.2 raises
a plea of appointment and termination being oral. The resolution
clearly says that appointment is made for period 1/7/1987 to
30/4/1988 and is subject to proof of recognition of B.Ed.Degree of
Kesarwani University. The appointment order is also for that period
only and makes it clear that it would be subject to approval of B.Ed.
There is also a termination order on record. This order, therefore,
clearly goes to show that the appointment was temporary and it
was duly terminated after the Academic Sessions. The petitioners
have also placed on record the documents which show that every
year respondent no.2 applied afresh and fresh appointment order
was issued to him and every year a termination order was issued.
It is, therefore, clear that respondent no.2’s appointment was for
that academic sessions only. In the circumstances, the ratio in
Maharashtra Shikshan Sanstha applies to the present case.
Similarly, it may be mentioned that the decision rendered in
Maharashtra Shikshan Sanstha case is rendered upon consideration
of the decision reported in AIR 1997 SC 2126 (Hindustan
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Education Society and anr. ..vs.. Sk.Kaleem Sk.Gulam Anabi and
ors.).
11. Further, it is case of petitioner that respondent no.2 was not
entitled to confirmation because he did not hold B.Ed. qualification
from recognized University. The Resolution passed by the petitioner
while approving the appointment of respondent no.2 shows that
respondent no.2 was appointed subject to recognition of his B.Ed.
Degree by the Government. Even the appointment order makes
that clear. The petitioners have placed on record the other
Resolution as well as letter, while terminating the services, calling
upon respondent no.2 to prove that his degree is approved by the
State Government. Respondent no.2 has not placed any
Government Resolution showing approval of his degree. On the
other hand, petitioner places on record at page No.115 in the
record of the Tribunal the letters of the Deputy Director which
show that B.Ed. Degree of Kesarwani University is not at all
recognized. For this reason, the petitioner was not entitled to hold
the post as an Assistant Teacher. The learned Judge of the Tribunal
has ignored all these aspects. In the circumstances, it appears that
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the learned Judge has come to wrong conclusion and had wrongly
directed the reinstatement. As a result, the petition is allowed. The
order passed by the School tribunal is set aside and the appeal
preferred by respondent no.2 before the School Tribunal stands
dismissed. No order as to costs.
JUDGE.
chute
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