1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6197 OF 2008 Matoshri Ramabai Ambedkar Vidyarthi Vasatigruh Trust & Anr. ...Petitioners. Vs. Mr.Bharat D. Hambir & Anr. ...Respondents. .... Mr. Balasaheb Deshmukh for the Petitioners. Mr. N.V. Bandiwadekar for Respondent No.1. Mr.S. K. Chinchlikkar, AGP for Respondent No.2. ..... CORAM : DR. D.Y.CHANDRACHUD, J. December 19, 2008. ORAL JUDGMENT : The Petitioners conduct a post basic Ashram School for Secondary School Standards, namely Standards VIII to X. The School Tribunal held by its order dated 26th March 2008 that the action of the Petitioners in preventing the Respondent from signing the Muster Roll with effect from 8th September 2007 was illegal and issued a direction that the Respondent should be reinstated with consequential benefits. 2 2. When the petition came up for admission on 10th October 2008, the submission that was urged before the Court was that in view of the provisions of Section 2(21) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and the judgments of Learned Single Judges of this Court in Dr.Narendra Bhiwapaurkar Andha Vidyala vs. Shoba Laxman Pachkawade, 2004(1) Mh. L.J. 18 and St.Francis Industrial Training Institute vs. P.J. Jose, 2007 (1) Mh. L.J. 570, the School Tribunal had no jurisdiction, inasmuch as the Petitioner-Institute was not recognized either by the Director of Education, the State Board or the Divisional Board and it was hence not a “private school” within the meaning of the Act. An appeal under Section 9 can only lie at the behest of an employee of 'private school'. Though in the Written Statement filed in reply to the Memo of Appeal, the jurisdiction of the School Tribunal was not questioned, the issue has been considered since it goes to the root of the jurisdiction of the School Tribunal. 3. The question before the Court is not res integra, and is governed by the judgment of a Full Bench in Suryakant Sheshrao 3 Panchal vs. Vasantrao Naik Vimukta Jati Bhatakya Jamati Aadarsh Prasarak Mandal, 2002(5) Bom.C.R. 95. Before enunciating the law laid down by the Full Bench, it must be noted that an appeal under Section 9 is maintainable at the behest of an employee of a private school who is dismissed, removed, terminated, reduced in rank or superseded by the management. The expression “private school” is defined by Section 2(20) to mean a recognized school established or administered by a management, other than the Government or a local authority. Section 2(21) defines the expression “recognized” to mean “recognized by the Director, the Divisional Board or the State Board, or by any officer authorised by him or by any of such Boards”. The “Divisional Board” and the “State Board” are defined in Sections 2(6A) and 2(25). These Boards are established under the Maharashtra Secondary and Higher Secondary Education Boards Act, 1965. These definitions establish that in order to be a private school, a school must be conducted by a private management and must be recognized by one of the authorities or Boards. In Suryakant Panchal' s case, the Full Bench held that while a Primary Ashram School is not recognized by one of the stipulated authorities, a post- 4 basic Ashram School from Standards VIII to X would be amenable to the jurisdiction of the School Tribunal under Section 9 since it would obviously be recognized by the “State Board” as defined in Section 2 (25) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. The Full Bench summarized the position as follows: “Secondary or Higher Secondary Ashram Schools or Blind Schools are “private schools” within the meaning of section 2(20) of the MEPS Act and any employee of such a school has a remedy of an appeal under section 9 of the said Act.” 4. In the present case, it has not been disputed before the Court by Counsel appearing on behalf of the Petitioners that the Second Petitioner is (i) A Post-Basic Ashram School teaching Secondary students from Standards from VIII to X; and (ii) Students of the school are accepted by the Divisional Board for the Board Examination. In view of the decision of the Full Bench, an employee of such a school, namely, a Post Basic Ashram School imparting eduction to students of Standards VIII to X would be entitled to move the Tribunal under Section 9 of the Act. 5 5. As already noted earlier, the only point that was urged at the initial stage was in regard to the jurisdiction of the School. However, Learned Counsel has also submitted that the order of the School Tribunal would require interference of this Court in the supervisory jurisdiction. Firstly, it was submitted that the First Respondent was not appointed on probation, but was a temporary employee. The School Tribunal has noted that in the present case, the First Respondent was appointed after an advertisement was issued on 19th April 2004 and interviews were held on 7th June 2004. The First Respondent was appointed with effect from 14th June 2004 as an Assistant Teacher. The First Respondent is a duly qualified teacher holding the B.A. and B.Ed. qualifications. The appointment of the First Respondent was approved by the Social Welfare Officer on a probationary basis. In fact, it was the contention of the Petitioners that the work of the First Respondent during the period of probation was not satisfactory. This aspect would be dealt with later. However, it is evident that even the Petitioners accepted and treated the appointment of the First Respondent as being on probation. The law in this regard is clear. Section 5 of the Maharashtra Employees of 6 Private Schools (Conditions of Service) Regulation Act, 1977 obligates every management of a private school to fill up a permanent vacancy by appointment of a duly qualified candidate to fill such vacancy and under sub-section (2) of Section 5, every person appointed to fill a permanent vacancy shall be on probation for a period of two years. Upon the satisfactory completion of the period of probation, there is a deeming fiction under the statute by which an employee is deemed to have been confirmed. A permanent vacancy has to be filled in by the appointment of a duly qualified candidate and every candidate appointed to fill a permanent vacancy has to be appointed on probation. 5A. Of late, there is a growing tendency of managements of private schools to appoint temporary employees from year to year, even though the vacancy is permanent and an adequate work load is available. This leads to grave uncertainty for teachers and places them at the mercy of the managements. The temporary appointment of a teacher who questions unethical practices of the management is promptly terminated. He or she who questions is cast away. Those who turn a blind eye or worse, become willing participants in a pattern 7 of exploitation, are retained. This is a perversion of what was intended by the state legislation enacted in 1977. Placing teachers in a state of eternal uncertainty is destructive of the cause of education. In numerous 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 managements of private schools, with notable exceptions, 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 a negation of statutory intent. Once a permanent vacancy arises, a management is duty bound statutorily to fill it up by appointing a duly qualified candidate on probation. The vacancy must be advertised to allow equal opportunity to eligible candidates. A regular 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 an exception. 8 Making temporary appointments the rule is to give a tool of subversion to the hands of unethical managements. Temporary appointments, followed as a practice become a tool of subversion because they perpetuate a regime of uncertainty about service, place the teacher in a position of perpetual fear and deprive the teacher of the stability needed to contribute to the process of moulding young minds. This Court must emphasise with all the authority at its command that a subversion of statutory intent should not be allowed. The Court will 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. 6. The position of the law which I have formulated finds elaboration in Mr.Justice R.M.S. Khandeparkar's judgment in President, Mahila Mandal Sinnar vs. Sunita Bansidhar Patole, 2007 (2) Mh. L.J. 105 thus : “Merely because the management chooses to issue appointment orders every year, the appointment of the respondent ipso facto cannot become a temporary one. The Management is bound by the provisions of law 9 comprised under MEPS Act in relation to the appointments of teachers. Once it is not in dispute that vacancy which was filled by the appointment of the respondent was a permanent vacancy, as such appointment was after following the procedure prescribed for appointing a person in permanent vacancy irrespective of the appointment letters being issued every year, the appointment of the respondent has to be construed as under Section 5(1) of the Act.” 7. In the present case, the management cannot take advantage of the fact that it issued a yearly appointment on a temporary basis initially. The appointment was made after following the requisite procedure for selection, namely, after the issuance of an advertisement and holding of interviews. The First Respondent was a duly qualified candidate. As already noted earlier, the management itself treated the appointment as one on probation. The services of the First Respondent were not discontinued within the period of two years on the ground that they were unsatisfactory. Upon the completion of two years' service, the First Respondent became a permanent employee as contemplated by the provisions of Section 5 (2) of the Act. 10 8. The second contention that has been urged is that it was not the case of the management at all that the services of the First Respondent were terminated and in fact, it was the First Respondent who had stopped attending the duties after signing the Muster on 5th September 2007. The Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 make a provision for such an eventuality. Rule 16(3) provides as follows : “16(3) In the case of a permanent employee who, without sufficient cause, fails to apply for leave within 7 days from the date of absence, it shall be treated as breach of discipline and he shall be liable for suitable disciplinary action after due inquiry. A permanent employee who is absent from duty without leave continuously for a period exceeding three years or more, shall be deemed to have voluntarily abandoned his services.” 9. In the present case, it was the case of the management that the First Respondent had without sufficient cause failed to apply for leave and had remained absent. The management was entitled to treat this as a breach of discipline and to hold a disciplinary enquiry to establish the allegation. Until the misconduct was proved, it was only an allegation. Nothing of the kind was done. The School Tribunal has reviewed the material which has come on record in great deal of 11 detail and noted that it is only after the First Respondent filed a complaint against the management that it prevented him, with effect from 8th September 2007, from signing the Muster Roll. The grievance of the First Respondent is that the management was resorting to unethical practices by making extortionate demands. The Tribunal has for cogent reasons entered a finding of fact that there is substance in the grievance of the First Respondent. 10. The judgment of the Tribunal is consistent with the law laid down by the Division Bench in Priyadarshini Education Trust vs. Ratis (Rafia) Bano, 2007(6) Mh. L.J. 667. The First Respondent was duly selected; he was appointed in a clear and permanent vacancy and he was duly qualified. The termination was wholly arbitrary. 11. In these circumstances, no case for interference under Article 227 of the Constitution of India is made out. The petition shall stand dismissed. The ad-interim stay shall stand vacated. .......