JUDGMENT
A.H. Joshi, J.
1. Rule. Rule is made returnable forthwith, and is heard finally by consent of parties.
2. In 1992, the respondent-Management invited applications for appointment to the post of a Trained Teacher.
3. Since qualified candidates were not available, the petitioner, who had not completed the degree of Bachelor of Education, was appointed with a permission to undergo the said education and secure the degree through Vocational Course of two years. The petitioner accordingly joined the duty and served in academic years 1992-93 and 1994-95. When the petitioner’s services were continued in next academic year, namely 1993-94, petitioner’s candidature was recommenced by the Management for said vocational B.Ed. Course of two years and she had commenced pursuing said course.
4. According to the petitioner, she was not allowed to sign the muster roll on 26th June, 1995, and at that time those who were junior to the petitioner as well as those who were similarly placed, namely had not so far acquired qualification of B.Ed., were retained in the employment. According to the petitioner, this termination is done, since the school came on grant-in-aid from 1994-95. Aggrieved by said refusal to allow to sign the muster roll, the petitioner has preferred an appeal before the School Tribunal.
5. The petitioner’s appeal has been opposed, urging that:
(a) it was not a case of preventing the petitioner from signing the muster, rather she was issued a termination letter on 28th March, 1995;
(b) the appellant – present petitioner was not confirmed after probation;
(c) Appellant’s services were terminated by giving her one month’s notice;
(d) the appointment was against a vacancy reserved for Scheduled Tribe category, and
(e) in academic year 1995-96, Trained Teacher, namely Narendra Hariji Kowadkar, was available, he has been appointed, and continues to be in the employment in place of the petitioner.
6. In compliance with the direction contained in the precedent, namely Anna Petite v. Presiding Officer, School Tribunal, Amravati and Aurangabad and Ors. 1997 (3) Mh.L.J. 697, the Tribunal framed issues.
7. Issue No. 2 is relevant for the present controversy, which is quoted below:
2) Whether the appointment of the appellant was made as per Section 5 of Act and the Rules thereunder?
(quoted from page 63 of the writ petition paper-book).
8. The case proceeds on admitted facts that:
(a) there existed a vacancy;
(b) the procedure for recruitment, such as advertisement etc., was followed;
(c) petitioner was appointed as untrained teacher with the permission to acquire qualification while in the employment;
(d) in 1995, Shri N.H. Kowadkar was appointed in the vacancy, which was occupied by the petitioner;
(e) the appointment of an untrained teacher in anticipation of acquiring the required qualification is permissible as a concession.
9. It is seen that by filing additional arguments, the objection to legality of petitioner’s appointment, relying on the reported judgment in case of Ashok Asramji Gabhane v. Presiding Officer, School Tribunal, Nagpur, and Ors. , was raised for the first time, though not pleaded in the Written Statement. Being a point of law, learned Tribunal permitted this objection to be agitated which was so done, and was entertained by the Tribunal.
10. In the result, based on the judgment in case of Ashok Gabhane (supra), Tribunal proceeded to observe, and held as follows:
10…There is nothing on record to show that school committee appointed to the appellant. As per the provisions of Sub-rule (5) of Rule 9, appointment order should be in prescribe proforma as given in schedule “D” and it should be issued and signed by the Head Master/Secretary of the School Committee. Admittedly all the appointment order placed on record by the appellant are issued and signed by the Secretary of the management and not by the Head Master/Secretary of the School Committee. As such there is no compliance of Sub-rule (2) and (5) of Rule 9 of the MEPS Rules 1981.
(quoted from pages 70 and 71 of the writ petition paperbook).
11. On facts, therefore, Tribunal found that the appointment order is not in form-D since it has not been signed by the Headmaster in capacity of Secretary of the School Committee. The obvious fallout was that the Tribunal answered Issue No. 2 in negative and dismissed present petitioner’s appeal.
12. Challenging the findings on Issue No. 2, learned Advocate Mr. Jibhkate submitted that:
(a) In view that since reliance on Ashok Gabhane’s case was placed, at last moment, petitioner did not get a fair and reasonable opportunity to meet the ground of defence.
(b) The Secretary of the respondent No. 1 and the Headmaster of the school, namely Pandharibapu Deshmukh Vidyalaya, is one and same, however, for proving this purpose, framing of a separate issue was necessary.
(c) The petitioner could have proved that all other appointment orders and that of petitioner have been issued under the signature of person, who has signed the order of petitioner and the Management has never objected to these appointments.
(d) Whether the deficiency in the appointment due to failure to describe the signatory as ‘Secretary of School Committee’ which, in fact, he was, or that the order ought to have been signed by the Secretary of School Committee is a matter of internal affair and employee cannot be dismissed for such matter on which he does not have control.
(e) The legality of appointment is and was a mixed question of fact and law, and since it was allowed to be raised without any foundation in the pleadings, the factual matrix of the issue remained uninvestigated and unenquired, yet finding adverse to appellant has been recorded resulting in injustice.
(f) Had said objection been raised in the written statement, the petitioner could have proved that failure of the Headmaster to sign the appointment order could not be attributed as a deficiency in the appointment leading to illegality.
(g) It was a matter of doctrine of ‘indoor management’ as to why the order was signed without proper description, apart that on facts, it is a matter liable to be explained by the Secretary of Society as well as the Headmaster as to in what circumstances the Secretary of the Society, who is a Chief Executive Officer, has signed the order.
(h) In view that Secretary of Society and Headmaster are one and the same person, the objection was not legal, so also was not bona fide and honest.
(i) The management, who commits a wrong or creates a deficiency in an appointment order, ought not be permitted to take benefit of its own wrong and use it as a weapon against a helpless employee, who is at the receiving end.
(j) When the management, who permits a teacher to be appointed, to join services, render the services, and does not raise objection to the deficiency, namely that the order is not signed by the Secretary of the School Committee, i.e., the Headmaster, and is rather signed by the Chief Executive of the Trust, i.e., the Secretary or any other competent officer, would be estopped from raising such objection to use it as a ground of justifying termination.
(k) Many other factual aspects and mixed question of fact and law could have been dealt with by bringing appropriate pleading in appeal memo, including by way of amendment and evidence and a proper contest on the issue, had such a mixed question of law and fact been agitated in the Written Statement instead at the fag end of hearing, through additional submissions.
(l) Applicability of the Judgment in case of Ashok Gabhane (cited supra) to the facts of the case is a question of fact and could never have been a matter of decision barely on oral submissions.
(m) It is not the contention of the respondent that the Secretary, who is also the Headmaster of the school makes the appointment on its own, of which management has no knowledge, on the contrary, petitioner’s name was recommended for vacational B.Ed., it was for the Secretary, who is and was also the Headmaster of the school, to use his proper designation as required under the law below his signature in the appointment order and for his failure to discharge his statutory obligation, the appointment of the appellant cannot be said to be invalid, being in breach of Section 5 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977.
13. According to learned Advocate Mr. Jibhkate, the question of legality of appointment may have many facets and petitioner’s appeal ought not to have been decided without fact-finding enquiry.
14. In reply to submissions of learned Advocate Mr. Jibhkate, respondent has replied in following manner:
(a) Fervent reliance has been placed on Ashok Gabhane ‘s case (supra).
(b) That, the post, in question, being one reserved for candidates of Scheduled Tribe, on this ground also the services of petitioner were not liable to be continued.
15. Having given consideration to rival submissions, this Court finds that reliance of respondent on Ashok Gabhane’s case, in fact, and in law, is no reply to the submissions advanced by the petitioner.
16. Second point raised by the respondent also does not meet the challenge, since no fact-finding, which needs enquiry on facts, is done by the School Tribunal.
The grounds, which are agitated by the petitioner, thus, go unchallenged.
The result is that the finding recorded by the School Tribunal on Issue No. 2 deserves to be reversed and set aside.
17. The rights of the Management to take the plea would, however, not be foreclosed and it would be open to the respondent to raise the plea it wants, by carrying out appropriate amendment in the Written Statement filed by it by adopting a proper procedure.
In turn, depending on the manner and procedure as to counter such plea as may be chosen by the appellant-employee, the hearing of appeal will have to be done. The appellant would certainly be entitled to meet such a plea by adopting such procedure and devices as available in law.
18. This Court, therefore, holds that the Writ Petition deserves to be allowed. Rule is made absolute by quashing and setting aside the impugned order and finding on Issue No. 2. Case is remanded to the School Tribunal for hearing and disposal according to law, keeping all relevant questions open to parties with observations as to the manner in which the objection, in question, needs to be dealt with. In the circumstances, parties shall bear their own costs.