{"id":222060,"date":"2009-11-25T00:00:00","date_gmt":"2009-11-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shri-sadguru-dnyan-prasarak-vs-presiding-officer-on-25-november-2009"},"modified":"2018-02-07T18:08:28","modified_gmt":"2018-02-07T12:38:28","slug":"shri-sadguru-dnyan-prasarak-vs-presiding-officer-on-25-november-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shri-sadguru-dnyan-prasarak-vs-presiding-officer-on-25-november-2009","title":{"rendered":"Shri Sadguru Dnyan Prasarak … vs Presiding Officer on 25 November, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Shri Sadguru Dnyan Prasarak … vs Presiding Officer on 25 November, 2009<\/div>\n
Bench: C. L. Pangarkar<\/div>\n
                                             1\n\n    IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                  NAGPUR BENCH AT NAGPUR.\n\n\n\n\n                                                                                 \n                                                         \n                      WRIT PETITION NO.3444 OF 1994.\n\n\n    PETITIONERS :  1. Shri Sadguru Dnyan Prasarak Shikshan \n\n\n\n\n                                                        \n                          Sanstha, Khairgaon Taluka Narkhed, \n                          Distt.Nagpur, through its Secretary Shri \n                          Premraj Daulatrao Shelke, aged 37 years, \n                          resident of Linga, Tq.Warud,Distt.Amravati.\n\n\n\n\n                                             \n                           2. The Head Master,\n                               \n                               Linga High School, Linga, Tq.Warud,\n                               Distt.Amravati.\n                \n                              \n                                     VERSUS\n            \n\n\n    RESPONDENTS:1. Presiding Officer, \n         \n\n\n\n                         School Tribunal, Amravati Division, Amravati,\n                         Distt.Amravati.  \n\n                         2. Shankar Balaji Wankhede,\n\n\n\n\n\n                             resident of Linga, Tq.Warud, Distt.Amravati.\n\n                         3. Education Officer (Secondary)\n                             Zilla Parishad, Amravati.\n\n\n\n\n\n    =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-==-=-=-=-=-=-=-=-=\n    Shri H.A.Deshpande, Advocate for the petitioners.\n    Shri R.R.Pillai, Advocate for respondent no.2.\n    =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=\n\n                              CORAM :    C.L.PANGARKAR,J.\n<\/pre>\n
                              DATED:     25th NOVEMBER, 2009.\n\n\n\n\n                                                         ::: Downloaded on - 09\/06\/2013 15:20:40 :::<\/span>\n                                                2<\/span>\n\n    ORAL JUDGMENT:\n\n\n\n\n                                                                                     \n<\/pre>\n
    1.    The School Management prefers this writ petition against the <\/p>\n
    order of the School Tribunal, whereby it has directed the school to <\/p>\n
    reinstate the respondent with back wages.\n<\/p>\n
    2.    The facts giving rise to the petition are as follows.\n<\/p>\n
          The petitioner runs a school known as Linga High School at <\/p>\n
    Linga, Tq.Warud.  It is a recognized school and is governed by the <\/p>\n
    provisions of Maharashtra Employees of Private School (Conditions <\/p>\n
    of   Service)   Regulation   Act,   1977   and   Rules   thereunder <\/p>\n
    (M.E.P.S.Act).     There   was   a   clear   and   permanent   vacancy   of   an <\/p>\n
    Assistant   Teacher   in   the   said   school   in   the   year   1986-87.\n<\/p>\n
    Respondent   no.2   applied   for   his   appointment   as   an   Assistant <\/p>\n
    Teacher.  He was accordingly appointed as Assistant Teacher w.e.f.\n<\/p>\n
    13\/9\/1986 but according to respondent no.2, no written order was <\/p>\n
    issued.  The services of respondent no.2, however, were continued <\/p>\n
    and   he   continued   to   work   up   to   30\/4\/1990.     Respondent   no.2 <\/p>\n
    holds   qualification   M.A.B.Ed.     It   is   the   contention   of  respondent <\/p>\n
    no.2   that   his   services   were   orally   terminated   by   the   present <\/p>\n
    petitioner.   Since   the   services   of   respondent   no.2   came   to   be <\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 15:20:40 :::<\/span>
\n                                                3<\/span><\/p>\n
    terminated, he filed an appeal under Section 9 of the M.E.P.S.Act <\/p>\n
    before the School Tribunal.\n<\/p>\n
    3.    The appeal was resisted by the present petitioners mainly on <\/p>\n
    three   grounds.     First   ground   was   that   the   school   was   not <\/p>\n
    permanently   recognized,   respondent   no.2   did   not   hold   required <\/p>\n
    qualification of B.Ed.  and third; appointment was temporary.\n<\/p>\n
    4.    The learned Judge of the Tribunal negatived the contentions <\/p>\n
    raised by the present petitioner and directed reinstatement. Hence, <\/p>\n
    the present writ petition.\n<\/p>\n
    5.    I have heard the learned counsel for the petitioners as well as <\/p>\n
    the respondents.\n<\/p>\n
    6.    From the submissions made in the memo of appeal, it does <\/p>\n
    not seem to be in dispute that respondent no.2 was appointed in <\/p>\n
    clear   vacancy   for   three   consecutive   years   i.e.   from   1987-88   to <\/p>\n
    1989-90.     His   appointment,   however,   was  from   year   to   year   for <\/p>\n
    three years.\n<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 15:20:40 :::<\/span>
\n                                               4<\/span><\/p>\n
    7.    Learned counsel for respondent no.2 submits before me that <\/p>\n
    respondent   no.2   had   worked   continuously   for   three   Academic <\/p>\n
    Sessions and his appointment was in a clear vacancy.   He submits <\/p>\n
    that proof of these two ingredients is enough to treat respondent <\/p>\n
    no.2 as deemed to be confirmed under Section 5 of the M.E.P.S.Act.\n<\/p>\n
    The learned counsel for the petitioners submits, on the other hand, <\/p>\n
    that   there   are   three   reasons   which   are   enough   to   hold   that <\/p>\n
    respondent   no.2   cannot   be   deemed   to   be   confirmed.   The   first <\/p>\n
    ground that is advanced is that the school was newly established <\/p>\n
    and its recognition itself was for all these three years from year to <\/p>\n
    year.  The second ground is that respondent no.2 did not hold B.Ed.\n<\/p>\n
    Degree from recognized University and third; the appointment of <\/p>\n
    respondent no.2 itself was temporary and from year to year.\n<\/p>\n
    8.    The learned Judge of the Tribunal has rejected the contention <\/p>\n
    that, because the school received the recognition from year to year, <\/p>\n
    the services of respondent no.2 were temporary and from year to <\/p>\n
    year.  According to clause 4.1 and 4.2 of the School Code, a school <\/p>\n
    upon   establishment   continues   to   receive   temporary   recognition <\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 15:20:40 :::<\/span>
\n                                                5<\/span><\/p>\n
    only for year to year for first five years.  It is only after five years <\/p>\n
    that   it   becomes   eligible   for   permanent   recognition.   This   school <\/p>\n
    itself   had   temporary   recognition   from   year   to   year   during   that <\/p>\n
    period   and   therefore   there   was   no   question   of   respondent   no.2 <\/p>\n
    being   appointed   on   probation   for   two   years   or   in   a   permanent <\/p>\n
    vacancy.     This   court   had   an   occasion   to   deal   with   similar <\/p>\n
    contingency.     In   a   decision   reported   in  2003(2)   Mh.L.J.92 <\/p>\n
    (Maharashtra Shikshan Sanstha and anr. ..vs.. State of Mah. though <\/p>\n
    the Secretary), this court observed as follows –\n<\/p>\n
               6.   Mr.Dharmadhikari,   learned   counsel,   for   the
\n               petitioners   relied   upon   a   judgment   of   Supreme <\/p>\n
               Court in Hindustan Education Society and another <\/p>\n
               vs. Sk.Kaleem Sk.Gulam Nabi and ors. – (1997) 5
\n               SCC   152   in   which   the   Supreme   Court   was
\n               considering the effect of an appointment order for <\/p>\n
               a   period   of   11   months   from   11\/6\/1992   to
\n               10\/5\/1993 is a clear vacancy.  The Supreme Court
\n               in para no.5 has observed as follows :\n<\/p><\/blockquote>\n
               ”   In   view   of   the   above   and   the   order   of
\n               appointment,   the   appointment   of   the   respondent
\n               was   purely   temporary   for   a   limited   period. <\/p><\/blockquote>\n
               Obviously,   the   approval   given   by   the   competent
\n               authority was for that temporary appointment.  As <\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 15:20:40 :::<\/span>
\n                                         6<\/span><\/p>\n
     regards   permanent   appointments,   they   are <\/p>\n
     regulated by sub-sections (1) and (2) of Section 5
\n     of   the   Act   according   to   which   the   Management <\/p>\n
     shall,   as   soon   as   possible,   fill   up,   in   the   manner
\n     prescribed,  every  permanent  vacancy in  a private <\/p>\n
     school by appointment of a person duly qualified to
\n     fill   in   such   vacancy.     Every   person   so   appointed
\n     shall be put on probation for a period of two years <\/p>\n
     subject to the provisions of sub-section (4) and (5).\n<\/p>\n
     He shall, on completion of the probation period of
\n     two years, be confirmed.”\n<\/p>\n
     Having regard to the fact that school was granted
\n     recognition from year to year for a period of three <\/p>\n
     years   consecutively   and   having   regard   to   the <\/p>\n
     admitted  fact   that   the   approval  of  1st  respondent
\n     was not for more than one year, it is clear that the
\n     appointment   in   question   was   similar   to   the   one <\/p>\n
     considered   by   Their   Lordships   in   decision   cited
\n     supra.\n<\/p>\n
     7.     Mr.Manohar,   learned   counsel,   for   the   3rd
\n     respondent submitted that if the managements are
\n     allowed to appoint teachers from year to year on a
\n     temporary   basis,   it   would   defeat   the   purpose   of
\n     section 5(2) of the Act. As a broad proposition, this
\n     cannot   be   disputed.   However,   each   appointment <\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 15:20:40 :::<\/span>
\n                                        7<\/span><\/p>\n
     would have to be considered case by case.   In the <\/p>\n
     present case, it is clear that the appointment was a
\n     temporary  appointment   for  one   year.     Thereafter, <\/p>\n
     there   is   no   appointment   and   the   3rd  respondent
\n     seems   to   have   worked   for   more   than   two   years <\/p>\n
     with breaks in the summer vacation. Having regard
\n     to   the   fact   that   the   School   itself   had   not   been
\n     recognized, I find that the appointment cannot be <\/p>\n
     said to be in a permanent and clear vacancy which <\/p>\n
     would attract the provisions of Section 5 of the Act.\n<\/p>\n
     8.      In fairness, Mr.Manohar, learned counsel for
\n     the 3rd respondent, did not dispute that the facts of
\n     the   present   case   are   covered   by   the   decision   of <\/p>\n
     Division Bench of this Curt in Mathuradas Mohta <\/p>\n
     College of Science vs. R.T.Borkar and others<\/a>, 1997
\n     (2) Mh.L.J.168.   In similar situation, the Division
\n     Bench   presided   over   by   the   Chief   Justice   Shri <\/p>\n
     M.B.Shah,   as   then   he   was,   has   in   paragraph   7
\n     observed as under :\n<\/p>\n
          “It is further to be noted that the post was of
\n          teacher in Botany subject which was not the
\n          subject   of   the   respondent   no.1   as   the
\n          respondent   no.1   is   M.Sc.   in   Zoology   and,
\n          therefore, it cannot be said that respondent
\n          no.1   was   duly   qualified   for   the   said   post.\n<\/p><\/blockquote>\n
                                                     ::: Downloaded on – 09\/06\/2013 15:20:40 :::<\/span>
\n                                                  8<\/span><\/p>\n
                    Apart   from   this,   even   assuming   that   there <\/p>\n
                    was   a   clear   vacancy,   the   order   issued   was
\n                    purely temporary and, therefore, not proper <\/p>\n
                    order.   However, it will be an error to treat
\n                    the said order as an order under section 5 of <\/p>\n
                    the Act, viz., the order for a period of two
\n                    years probation. Such legal fiction we do not
\n                    find anywhere in the Act and the Rules and, <\/p>\n
                    therefore,   the   finding   recorded   by   the <\/p>\n
                    Tribunal   that   th   order   is   covered   under
\n                    section 5 of the MEPS Act is not correct.”\n<\/p><\/blockquote>\n
    9.     The decision applies on all fores to the instant case.  It would <\/p>\n
    be clear that the school had no permanent recognition and was still <\/p>\n
    under temporary recognition.  The recognition could be withdrawn <\/p>\n
    any   time   and   therefore,   the   posts   that   were   available   were   not <\/p>\n
    permanent   vacancies   though   they   could   be   said   to   be   clear <\/p>\n
    vacancies.   In   order   to   bring   the   case   under   Section   5(2)   of   the <\/p>\n
    M.E.P.S.Act, it would be necessary that the post against which the <\/p>\n
    claim is made is permanent.   Due to the temporary recognition in <\/p>\n
    no case the post could be said to be permanent.\n<\/p>\n
    10.    The   petitioners   have   placed   on   record   the   Resolution   of <\/p>\n
                                                                ::: Downloaded on – 09\/06\/2013 15:20:40 :::<\/span>
\n                                                 9<\/span><\/p>\n
    Society by which appointment was approved by the Society.   The <\/p>\n
    petitioners have also placed on record all the three appointment <\/p>\n
    orders as well as termination orders, though respondent no.2 raises <\/p>\n
    a plea of appointment and termination being oral.  The resolution <\/p>\n
    clearly   says   that   appointment   is   made   for   period   1\/7\/1987   to <\/p>\n
    30\/4\/1988 and is subject to proof of recognition of B.Ed.Degree of <\/p>\n
    Kesarwani University.  The appointment order is also for that period <\/p>\n
    only and makes it clear that it would be subject to approval of B.Ed.\n<\/p>\n
    There is also a termination order on record.  This order, therefore, <\/p>\n
    clearly goes to show that the appointment was temporary and it <\/p>\n
    was duly terminated after the Academic Sessions. The petitioners <\/p>\n
    have also placed on record the documents which show that every <\/p>\n
    year respondent no.2 applied afresh and fresh appointment order <\/p>\n
    was issued to him and every year a termination order was issued.\n<\/p>\n
    It is, therefore, clear that respondent no.2’s appointment was for <\/p>\n
    that   academic   sessions   only.     In   the   circumstances,   the   ratio   in <\/p>\n
    Maharashtra   Shikshan   Sanstha  applies   to   the   present   case.\n<\/p>\n
    Similarly,   it   may   be   mentioned   that   the   decision   rendered   in <\/p>\n
    Maharashtra Shikshan Sanstha case is rendered upon consideration <\/p>\n
    of   the   decision   reported   in  AIR   1997   SC   2126   (Hindustan <\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 15:20:40 :::<\/span>
\n                                                10<\/span><\/p>\n
    Education   Society   and  anr.   ..vs..   Sk.Kaleem  Sk.Gulam  Anabi   and <\/p>\n
    ors.).\n<\/p>\n
    11.      Further, it is case of petitioner that respondent no.2 was not <\/p>\n
    entitled to confirmation because he did not hold B.Ed. qualification <\/p>\n
    from recognized University. The Resolution passed by the petitioner <\/p>\n
    while   approving  the  appointment of  respondent  no.2  shows that <\/p>\n
    respondent no.2 was appointed subject to recognition of his B.Ed.\n<\/p>\n
    Degree  by the  Government.    Even  the  appointment  order  makes <\/p>\n
    that   clear.       The   petitioners   have   placed   on   record   the   other <\/p>\n
    Resolution as well as letter, while terminating the services, calling <\/p>\n
    upon respondent no.2 to prove that his degree is approved by the <\/p>\n
    State   Government.     Respondent   no.2   has   not   placed   any <\/p>\n
    Government Resolution showing approval of his degree.     On the <\/p>\n
    other   hand,   petitioner   places   on   record   at   page   No.115   in   the <\/p>\n
    record   of   the   Tribunal   the   letters   of   the   Deputy   Director   which <\/p>\n
    show   that   B.Ed.   Degree   of   Kesarwani   University   is   not   at   all <\/p>\n
    recognized. For this reason, the petitioner was not entitled to hold <\/p>\n
    the post as an Assistant Teacher.  The learned Judge of the Tribunal <\/p>\n
    has ignored all these aspects.  In the circumstances, it appears that <\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 15:20:40 :::<\/span>
\n                                                 11<\/span><\/p>\n
    the learned Judge has come to wrong conclusion and had wrongly <\/p>\n
    directed the reinstatement.  As a result, the petition is allowed. The <\/p>\n
    order   passed   by   the   School   tribunal   is   set   aside   and   the   appeal <\/p>\n
    preferred   by   respondent   no.2   before   the   School   Tribunal   stands <\/p>\n
    dismissed.  No order as to costs.\n<\/p>\n
                                                                             JUDGE.\n<\/p>\n
    chute<\/p>\n
                                                                ::: Downloaded on – 09\/06\/2013 15:20:40 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Shri Sadguru Dnyan Prasarak … vs Presiding Officer on 25 November, 2009 Bench: C. L. Pangarkar 1 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-222060","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nShri Sadguru Dnyan Prasarak ... vs Presiding Officer on 25 November, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shri-sadguru-dnyan-prasarak-vs-presiding-officer-on-25-november-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shri Sadguru Dnyan Prasarak ... vs Presiding Officer on 25 November, 2009 - 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