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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3235 OF 1999
The Chairman, Shri Maharani
Radhabai Vidyarthi Vasatigraha & Anr. ... Petitioners
V/s.
Shri Mahadev Murlidhar Ganbawale & Anr. ... Respondents
Mr.Rajesh Kachare for Petitioners
Mr.Vishwanath Talkute for Respondent No.1
Mr.C.R. Sonawane, AGP, for Resp. No.2
CORAM: SMT.NISHITA MHATRE, J.
J
DATED: SEPTEMBER 25, 2008
ORAL JUDGEMENT:
. The petition challenges the order of the School
Tribunal dated 31.3.1999 in Appeal No.33 of 1997. By
this order, the School Tribunal allowed the appeal and
directed the petitioner to reinstate respondent No.1 in
service in the same position as he was when his services
were terminated. Backwages have been ordered to be paid
together with consequential benefits from November 1995
till reinstatement in service. The Education Officer
has been directed to deduct the salary and other
benefits payable to the appellant i.e. Respondent No.1
herein from the grants of the petitioner in the event
the backwages were not paid within 40 days of the
receipt of the judgment.
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2. The facts giving rise to the present petition
are as follows:
Petitioner No.1 is an institution which runs the school
known as Girls High School Radhanagari of which the
petitioner No.2 is the Headmistress. The school was
established in 1987 with one division for each class
from the 5th standard to 10th standard. The petitioners
were accorded permission to start the second division of
the 6th standard in the school on 20.10.1994. Prior to
this on 1.8.1994. The petitioners appointed the first
respondent
on probation for two years. Respondent No.2
approved of the appointment of Respondent No.1 (for
short, hereinafter referred to as the ‘Respondent’) on
probation for two years by a communication of
12.11.1995. Five days thereafter, a direction was
issued by the Education officer to close the additional
division of the 6th standard since there was a lack of
students. The petitioners were directed to close the
additional division on 17.11.1995. It appears
thereafter on 2.1.1996, the Education Officer approved
of an additional division of the 7th standard on a
non-grant basis. By a communication dated 23.3.1996,
the petitioners then terminated the services of
Respondent No.1 w.e.f. 30.4.1996. According to the
petitioners, this order of termination was served on
Respondent No.1 and has been acknowledged by him. The
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respondent, however, contends that his services were
terminated from July 2007. According to the respondent,
he was permitted to work upto June 2007 and it was only
in July 2007 that the petitioners prevented him from
working in the school. Being aggrieved by the
termination of his services, the respondent preferred an
appeal before the School Tribunal. He contended that he
was appointed against a clear permanent vacancy and that
he had completed the probationary period satisfactorily.
The respondent contended that he was deemed to be
permanent in service in view of the fact that he had
completed the two
ig years as a probationer. He has
pleaded further that the headmistress prevented him from
teaching in the school and he was asked to leave the
school premises. No reasons were assigned to him when
he was obstructed from working on 1.7.1997. He
therefore claimed that he should be reinstated with
continuity of service and full backwages alongwith
incidental benefits.
3. The petitioners contested the appeal by filing
the written statement. They contended that a memo has
been issued to the respondent because his behaviour and
character was not good. This memo is dated 22.12.1995.
The petitioner has also contended that they were
directed by the Education Officer to terminate the
services of the respondent since the additional division
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of the 6th standard could not function due to the lack
of students. The petitioners claim that they had
informed the respondent of this decision of the
Education Officer on 23.1.1996 itself. They further
pleaded that the termination of service of the
respondent was effected on 30.4.1996, after giving
notice to the respondent dated 29.3.1996. It was also
contended that the appeal had been filed after the
period of one year and, therefore, was not maintainable
in view of the limitation prescribed u/s 9 of the MEPS
Act.
4. The School Tribunal after considering the
evidence on record has held that the services of the
respondent were terminated in July 1997. The Tribunal
has also held that the respondent had proved that he had
satisfactorily completed his probationary period in
service. It was also held that the respondent’s
services had been illegally terminated and that he was
entitled to the reliefs claimed in the appeal.
5. The learned advocate for the petitioners has
submitted that the petitioners had terminated the
services of the respondent by the letter dated
29.3.1996. The termination was effected on 30.4.1996
and, therefore, the Tribunal has erred in concluding
that the termination of services had taken place in July
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1997. He submits that there is voluminous documentary
evidence on record to indicate that the respondent was
not in service after April 1996. He contends that being
a probationer, the respondent’s services could be
terminated at any point of time. He points out that it
was because the Education Officer had directed the
petitioners to terminate the services of the respondent
because there were very few students in the additional
division created for the 6th standard. He further
submits that the School Tribunal has misconstrued the
documentary evidence on record which indicates that the
respondent did not teach the students after April 1996.
6. The learned advocate relies on the judgment of a
learned Single Judge of this Court (Marlapalle, J.) in
the case of Head master, Amar High Schook, Aurangabad
v/s. Lata d/o Gajanan Suryawanshi & anr.,
2005(1)Mh.L.J. 1150 in support of his submission that
on account of reduction of the strength of the students
resulting in the abolition of the post, the petitioner
had to terminate the services of the respondent who was
a probationer and that such an employee was not entitled
to reinstatement in service.
7. The learned advocate for the respondent states
that the school tribunal has committed no error of law
requiring interference from this Court. He urges that
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this Court should not exercise its jurisdiction under
Article 227 of the Constitution of India as the
petitioners have not been able to demonstrate that the
findings of the School Tribunal are perverse or that
they are based on no material on record. The learned
advocate submits that the respondent was not served with
a copy of the termination letter dated 29.3.1996 and
therefore, it was not possible for the respondent to
challenge that order. In fact, submits the learned
advocate, the respondent was permitted to continue in
service upto 30.6.1997. It was only on 1.7.1997 that
the Headmistress
of the school prevented him from
teaching the students and from entering the school
premises. He submits that the petitioners could not
have terminated the services of the respondent without
following the procedure stipulated in the MEPS Act and
the rules framed thereunder. He draws my attention to
the fact that the respondent has worked for two years as
a probationer and therefore, must be deemed to be a
permanent workman on completion of two years of
probation. He submits that a permanent employee cannot
be removed by the management without recourse to rules
36, 37 or if the employee is to be declared surplus then
it must be done in accordance with rule 28. He draws my
attention to the judgment in the case of Farhana Banu
Mohammed Ayub v/s. Jadeed Anjuman-E-Taleem & Ors.,
2008(4) ALL MR 69 in support of his submission that once
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the respondent is a deemed permanent employee he could
not have been removed without following the due process
of law.
8. The learned advocate for the respondent has
taken me through the record and proceeding before the
school tribunal. The record indicates that several
documents were filed by both the parties. The
respondent had filed marksheets of the students
pertaining to the academic years 1996-97. In fact,
these marksheets are dated 1.5.1997 and have been signed
by the respondent as the class teacher and countersigned
by the Principal. These Marksheets relate to the
students of the 5th standard. The learned advocate for
the petitioner submits that these marksheets appear to
be fabricated because the original marksheets for the
same class and for the same period do not bear the
respondent’s signature. He submits that this would
indicate that he was not working in the school upto May
1997 as contended.
9. Admittedly, these documents relied on by the
advocate for petitioners were not produced before the
School Tribunal. The School Tribunal therefore
proceeded on the basis of the marksheets produced by the
respondent. The other document as produced before the
Tribunal was the time table which bore the name of the
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teachers for the specific periods for which they were
attended the class. The timetable filed by the
petitioner does not bear the name of the respondent.
10. It appears that muster rolls pertaining to this
period were produced by the Petitioners before the
School Tribunal. However, the School Tribunal according
to the learned advocate appearing for the petitioners
has not taken cognisance of that document. The other
document relied on is an extract from the muster rolls
indicating that the respondent had been terminated from
service in June, 1996.
11. In my opinion, the Tribunal has considered all
these documents in the proper perspective. The Tribunal
has committed no error by concluding that the
termination of service was illegal. In fact, the
documents which are produced indicate that the
respondent was working even after the so called
termination order was passed by the petitioners in March
1996. The School Tribunal has considered all these
aspects of the matter and has held that the respondent
is entitled to reinstatement in service.
12. The School Tribunal has also considered the fact
that the petitioners had contended that they had
terminated the services of the respondent by issuing him
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a letter dt. 29.3.1996. The School Tribunal has noted
the fact that the endorsement on the letter dated
29.3.1996 which was puportedly the signature of the
respondent did not match with his signature on the
Vakalatnama filed in the appeal. The Tribunal has
matched the signature which the Petitioners claim is
that of the Respondent with the other documents on
record The Tribunal has concluded that the endorsement
on the letter dated 29.3.1996 was not that of the
respondent. In these circumstances, the Tribunal has
held, and in my view rightly, that there was no
termination of
service in 1996 as contended by the
Petitioners. The termination of service was effected in
July 1997. The Tribunal has considered the evidence on
record and has rightly held that the termination of
service is illegal as it was effected in breach of the
provisions of law.
13. The submission of the learned advocate for the
Petitioners is that in any event they cannot reinstate
the respondent because the additional division of the
6th standard is directed to be closed and, therefore,
there is no vacancy available in order to appoint the
respondent. He emphasises the ratio laid down by the
learned Single Judge in the case of Head Master, Amar
High School, Aurangabad & anr. v/s. Lata d/o. Gajanan
Suryawanshi & anr., 2005(1) Mh.L.J. 1150. In this
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judgment, the learned Single Judge has held that the
services of a teacher on probation can be discontinued
even though his performance during the probationary
period was satisfactory. It is held that if there is no
vacancy available for confirming the probationer on
account of reduction in the strength of the students the
question of confirming the probationery service against
any existing post could not be conceded. The learned
Judge has held that in a given case, although the
provisions of section 5(3) of the MEPS Act do not
envisage such a contingency, there was no legal bar for
discontinuation of
ig a probationer in employment on
account of non-availibility of the post. The learned
Judge has held that a teacher who has completed his
probationary period in service need not be confirmed if
there was no existing vacancy either at the time of his
probationery period ended or little before. In the
facts of that case, the management decided to
discontinue the services of the employee on 4.1.1998 and
the probationery period was to be completed on 8.1.1998.
It is in these facts and circumstances that the learned
Judge has held that the services of the employee could
be terminated even though she had completed the period
of probation.
14. In my opinion, the facts in the present case
before me are clearly distinguishable from the facts
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obtaining in Amar High School’s case (supra). The
respondent herein was appointed even prior to the
approval being granted for the additional division of
the 6th standard. His order of appointment clearly
mentions that he was appointed in a clear and permanent
vacancy on probation for a period of 2 years teaching.
Therefore, the submission of the learned counsel for the
respondent that the respondent was appointed only for
the purpose of teaching in the additional division of
the 6th standard cannot be accepted. Furthermore, it is
seen from the record before the Court that the
respondent has taught not only the 6th standard but also
the other classes during the period of his service. In
these circumstances, the contention of the petitioners
that the services of the respondent had to be terminated
because of the reduced strength of the students in the
6th standard cannot be accepted. If indeed there was a
reduced strength of students then it was necessary for
the petitioners to follow the procedure under Rule 26
for declaring the respondent surplus on account of
abolition of posts. However, the petitioners have
failed to do so and are now attempting to take refuge
under the direction issued by the Education Officer for
terminating the services of the respondent.
15. The decision to terminate the services of an
employee rests solely with the management of the school.
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Assuming the Education Officer had decided not to
approve of the appointment of the respondent, the
petitioner could not have consequently terminated the
services of the respondent in view of the judgment of
the Full Bench in the case of St.Ulai High School & anr.
v/s. Devenraprasad Jagannath Singh, 2007(1) Mh.L.J.
597.
597 The petitioners are required to follow the
mandatory procedure laid down in the MEPS Act and the
Rules framed thereunder while terminating the services
of an employee. Not having done so, the petitioners
cannot contend now that the services of the respondent
had been legally terminated.
16. Besides this, the management tried to contend
before the Tribunal that the services of the employee
were terminated on account of his poor conduct. However
there is no material on record to establish this fact
nor is there any material on record to indicate the
nature of the misconduct, if any, committed by the
respondent. Assuming he had committed a misconduct then
it was necessary for the petitioners to hold an enquiry
as provided under the MEPS Rules.
17. In my opinion, therefore, the Tribunal cannot be
faulted for the view that it has taken. The respondent
is entitled to reinstatement with continuity of service.
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18. As regards the backwages, the petitioners
contend that the employee had been paid his salary from
November 1995 till his services were terminated. That
being the position, the Tribunal has justifiably granted
backwages to the respondent.
19. I do not see any reason to exercise the
extraordinary jurisdiction of this Court under Articles
226 and 227 of the Constitution of India in the present
case.
20. The
Education Officer has surprisingly filed an
affidavit which merely paraphrases the decision in the
appeal. The affidavit is vague and based on surmises
and conjectures. A ludicrous averment has been made in
the affidavit that the Presiding Officer of the School
Tribunal had lost sight of the possibility of the
Respondent signing differently on the appeal memo and
the endorsement on the letter of termination. This
averment is nothing but a conjecture on the part of the
affiant i.e. the Deputy Education Officer, Zilla
Parishad, Kolhapur.
21. In these circumstances, the order of the School
Tribunal is upheld. Rule discharged. No costs.
22. Learned advocate for the Petitioner seeks stay
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of this order. Stay granted for eight weeks.
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