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