bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 663 OF 2006 PETITION NO. 663 OF 2006 PETITION NO. 663 OF 2006 1. Nehru Shikshan Sanstha, Pashan, Pune. 2. The Headmistress, Kamala Nehru Primary School, Chinchwad. ... Petitioners v/s 1. Smt.Shobha Karve 2. Deputy Education Officer, Primary Zilla Parishad, Pune. 3. The Administrative Officer, Municipal School Board, Pune. ... Respondents Mr.G.S.Godbole for the petitioners. Mr.A.M.Joshi for the respondent No.1. Mr.D.R.More, A.G.P. for the respondent No.3. CORAM: CORAM: CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: DATED: DATED: 2ND DECEMBER, 2008 2ND DECEMBER, 2008 2ND DECEMBER, 2008 ORAL ORAL ORAL JUDGMENT JUDGMENT JUDGMENT: 1. The petition challenges the order passed by the School Tribunal. The School Tribunal has concluded that the termination of service of the 1st respondent is illegal and has, therefore, set it aside. The 1st respondent has been granted reinstatement w.e.f. 9.7.2004 as an Assistant Teacher with continuity of 2 service and full back wages and other consequential benefits. The grievance of the petitioners in the petition is that the 1st respondent was illegally appointed in service in connivance with one Bharat Oval who was then the headmaster of Kamala Nehru Primary School, Chinchwad, which is run by the 1st petitioner. The petitioners have contended that all the school records showing the 1st respondent’s name were fabricated by the 1st respondent in collusion with Bharat Oval in order to assist the 1st respondent in attaining and continuing in employment with the school. It is for this reason the services of the 1st respondent were terminated. 2. The facts giving rise to the petition are as follows:- . In the year 1993 Bharat Oval was the headmaster of Kamala Nehru Primary School, which is run by the petitioner No.1 institution. On 3.6.1996, a resolution was passed by the Committee of the school authorising the then headmaster to issue orders of appointment in favour of several persons, including the 1st respondent. Accordingly, the 1st respondent was appointed on 7.6.1996 by an appointment order dated 4.6.1996. It appears that, on 29.4.1998 the question arose as to 3 whether the 1st respondent should be confirmed in service after having completed two years of service on probation. However, at a meeting held on 29.4.1998, the minutes of the earlier meeting dated 3.6.1996 were not approved and the resolutions which were passed at the earlier meeting including the Resolution No.7, appointing the 1st respondent, were cancelled. Thereafter, on 23.6.1998, the Administrator and Deputy Education Officer, Zilla Parishad, issued a letter to the then headmaster of the school directing him to refrain from permitting any persons who were not validly appointed and whose appointment was not approved by the Government to sign the muster roll. The headmaster was directed to submit a list of validly appointed teaching and non-teaching staff alongwith the orders of the approval in respect of such staff. 3. It appears that, in 1999, respondent No.1 filed Writ Petition No.6272 of 1999 against the Administrative Officer, Municipal Primary School Board for granting approval to her appointment. This petition was later withdrawn unconditionally by the 1st respondent. 4. The 1st respondent wished to pursue the D.Ed. Course and, therefore, had sought permission for the same from the headmaster of petitioner No.1. The 4 Administrative Officer informed the 1st respondent that she could not be permitted to complete the D.Ed. Course. A letter was sent by Bharat Oval, the then headmaster, on 30.8.2000 to the Administrative Officer requesting permission for sending the 1st respondent for training for the postal D.Ed. Course. A similar letter was issued by him on 17.2.2003 to the Secretary of the Primary Education Department, Ministry of School Education. A notice was issued by the Administrative Officer to Bharat Oval to show cause as to why respondent No.1 was appointed w.e.f. 4.6.1993 when there were only 14 approved posts. Bharat Oval communicated to the Administrative Officer by letter dated 7.3.2003 that there were additional divisions in the school and the strength of the teachers had decreased, and hence respondent No.1 was appointed in the year 1993. Another letter was issued on 18.10.2003 by Bharat Oval requesting the Administrative Officer to approve of the appointment of the respondent No.1 and two other teachers in the school. 5. Thereafter, on 12.12.2003 it appears that the sanctioned strength of assistant teachers was reduced from 14 to 11 by the Administrative Officer. Writ Petition No.4291 of 2004 was filed by the 1st respondent seeking a direction from this Court to the 5 Administrative Officer that approval should be granted for her appointment as an Assistant Teacher in the graduate scale and for payment of salary in the scale available for non-graduate teachers from June, 2001 besides other consequential reliefs. 6. On 9.7.2004, the services of the 1st respondent were terminated. An appeal was preferred by the 1st respondent being Appeal No.22 of 2004 before the School Tribunal, Pune. An ex-parte order staying her termination of service was obtained by the 1st respondent on 20.7.2004. It appears that a similar order staying the termination of the 1st respondent’s services was passed by this Court in Writ Petition No.4291 of 2004. The interim order passed in the petition was later vacated on 22.11.2004. 7. After pleadings were complete before the School Tribunal, the parties filed several documents in support of their contentions. An affidavit of Bharat Oval dated 20.1.2005 was also filed by the 1st respondent alongwith her own affidavit. The petitioners produced certain documents to establish the fact that Bharat Oval had cheated a person by giving him an assurance of employing him with the school. 6 8. On 29.11.2005, the School Tribunal upheld the contention of the 1st respondent that, she was "otherwise terminated" from service by the petitioners illegally. Accordingly, she was granted reinstatement with continuity of service and full back wages alongwith other consequential benefits. 9. The learned counsel appearing for the petitioners submits that there was voluminous documentary evidence on record filed by the petitioners indicating that the 1st respondent had secured appointment in service illegally with the connivance of Bharat Oval, the then headmaster. He submits that the appointment of the 1st respondent and her continuation in service is illegal. According to him, a bare perusal of the documents filed before the School Tribunal indicates that the resolution purported to have been passed on 3.6.1996 appointing the 1st respondent in service was not passed by persons authorised to do so. He submits that, in fact, no such resolution was passed at the meeting held on the aforesaid date. He, therefore, submits that the appointment and the continuation of the 1st respondent in service was illegal and invalid. He submits that, in any event, the 1st respondent had not completed her D.Ed. Course within the stipulated time for being entitled to continue in employment. He submits that the 7 1st respondent completed her D.Ed. only on 29.11.2000 and, therefore, it cannot be said that she was validly appointed or that her continuation in service was permissible under the M.E.P.S. Act and Rules framed thereunder. The learned counsel further submits that, in any event, the 1st respondent had crossed the age within which a person could be employed under Rule 9(4) of the M.E.P.S. Rules. He submits that in Writ Petition No.6272 of 1999 filed by the 1st respondent, she had mentioned that her age was 36 years and, therefore, in 1996 when she was allegedly appointed, her age was 33 years i.e. above the permissible age of appointment. According to the learned advocate, Bharat Oval could not have granted ex-post facto sanction for relaxing the age of appointment. The learned counsel therefore submits that the order of the School Tribunal should be set aside and the order terminating the services of the 1st respondent be confirmed. 10. The learned advocate appearing for the 1st respondent submits that the bogey raised by the petitioners that the 1st respondent had not been validly appointed was raised after she was continued in service till 2001. In fact, submits the learned counsel, the name of the 1st respondent appears on the muster roll and she has signed it. He submits that, no action was 8 taken against Bharat Oval for the illegal acts allegedly committed by him in appointing the 1st respondent. He points out that, not only did the 1st respondent continue in service but her services had been approved and she had completed the D.Ed. Course. The learned advocate submits that the 1st respondent is being made a scapegoat in the dispute and differences which have arisen between the institution and Bharat Oval. The learned advocate then points out that some of the teachers who were appointed pursuant to the same resolution of 3.6.1996 were continued in service, whereas the services of the 1st respondent were terminated. The learned advocate has drawn my attention to the affidavit filed by Bharat Oval supporting the contentions raised by the 1st respondent. He therefore submits that the School Tribunal has correctly set aside the illegal termination of service of the 1st respondent. The learned advocate also points out that the management of the School Tribunal having resolved to appoint certain teachers cannot, by a subsequent resolution, revoke the earlier appointment. He urges that there was no material on record to indicate that the meeting on 3.6.1996 did not take place or that such a resolution was not passed and, therefore, the contentions raised by the petitioners should not be accepted. 9 11. The petitioners have annexed at Exhibits A and B the resolutions passed on 3.6.1996. According to the petitioners, the resolution which has been annexed at Exh.B to the petition is the one which was in fact passed at the meeting held on that day. The petitioners have contended that the resolution at Exh.A is a copy produced by the 1st respondent before the School Tribunal. It is contended that there is a variance between the two resolutions which itself was sufficient to indicate that the resolution produced by the 1st respondent was a got up document. According to the 1st respondent, the resolution which she had produced before the School Tribunal was a copy which was furnished to her by Bharat Oval and, therefore, she was not in any way responsible for fabricating any document as alleged by the petitioners. A bare perusal of the two documents indicates that the two resolutions are not the same. An appointment order was issued in favour of the 1st respondent on 4.6.1996. This appointment order is signed by the headmaster. It is submitted by the learned advocate for the petitioners that the appointment order itself is not issued in accordance with the M.E.P.S. Act and the Rules framed thereunder. The provisions of law stipulate that an order appointing a person as an Assistant Teacher must be issued by the 10 institution and not by the headmaster. Assuming there was an Administrator appointed at the relevant time, it was necessary for the appointment order to have been issued and signed by the person authorised by the School Committee. The learned advocate points out that there is nothing on record by which it can be presumed that the headmaster was so authorised. 12. In the meeting held on 29.4.1998, the minutes of the meeting of 3.6.1996 were placed for approval. The minutes which were recorded at the meeting of 29.4.1998 indicate that one Smt.Barve who was allegedly present, as recorded in the minutes of the meeting held on 3.6.1996, was not in fact present. There is also a statement that she was not present for any of the earlier meetings and that her signature was obtained on the minutes of the previous meeting much after the meeting was held. Accordingly, the resolutions passed at the earlier meeting of 3.6.1996 were revoked. The resolution at Exh.A produced by the 1st respondent before the School Tribunal does not bear the name of Smt.Barve. It only indicates that the representative of the non-teaching staff, Shri Rodge had proposed the resolution for appointing the 1st respondent and seven other teachers, and that Bharat Oval had seconded the same. 11 13. An affidavit has been filed by Bharat Oval before the School Tribunal wherein he has supported the contentions raised by the 1st respondent in her appeal. 14. In my opinion, the documents produced by the petitioners indicate that the meeting held on 3.6.1996 did not resolve that the respondent No.1 or any other teacher should be appointed to the school. The only resolutions passed at that meeting of 3.6.1996 were with respect to the constitution of the School Committee after the appointment of the Administrator. There was no resolution for appointment of any teaching or non-teaching staff passed on that day. This is borne out by the fact that on 29.4.1998 the resolution passed by the Committee does not mention the appointment of any teaching or non-teaching staff or the revocation of such appointments granted pursuant to the meeting held on 3.6.1996. Admittedly, an Administrator was appointed for the school prior to the meeting held on 3.6.1996. The record produced by the petitioners of the meeting held on 3.6.1996 mentions the name of the Administrator who was appointed and was present at the meeting. When the Administrator was in fact appointed, the resolution which the 1st respondent relies ought to bear his signature, indicating that he was present at the 12 meeting. However, strangely, that resolution does not bear the signature of Shri Deshpande who was then appointed as the Administrator of the school. This fact itself does not lend to the contention of the respondent No.1 that she had produced the genuine minutes of the meeting held on 3.6.1996. An affidavit has been filed by Bharat Oval before the School Tribunal wherein he has supported the contentions raised by the 1st respondent in her appeal. However, in my opinion, the affidavit cannot override the genuine documents produced by the petitioners. In fact, Bharat Oval does not deny that an Administrator was appointed. Nor does he state categorically that the meeting of 3.6.1996 was held in the absence of the Administrator. 15. In any event, the 1st respondent had crossed the age of eligibility for being appointed as an Assistant Teacher. Her own averments in Writ Petition No.6272 of 1999 indicate that she was 36 years of age when she filed the writ petition. In 1996, her age would obviously have been 33 years i.e. past the age of eligibility. It is true that under Rule 9(4) of the M.E.P.S. (Conditions of Service) Rules, the age criterion for female employees can be relaxed. However, there is no material on record indicating that the authorities had relaxed the same in favour of the 1st 13 respondent. 16. The 1st respondent’s contention that she had signed the muster roll for over eight years and therefore she should be continued in service, is without merit. When her appointment itself is not legal, the question of continuing her in service would not arise. There is no material on record to indicate that the resolution passed on 3.6.1996 which was produced by the petitioners before the Tribunal was not a true depiction of what occurred at the meeting of 3.6.1996. The very fact that the minutes of that meeting were not approved in 1998 when the meeting was held, only because Smt.Barve was asked to sign the minutes at a later stage although she had not attended the meeting, would indicate that no such resolution as relied on by the 1st respondent was passed on 3.6.1996. The resolution which the 1st respondent has produced is numbered as Resolution No.7. However, Resolution No.7 which figures on the minutes produced by the petitioners is with respect to a totally different topic. Therefore, in my opinion, no reliance can be placed on the resolution produced by the 1st respondent which is at Exh.A to the petition. 17. The 1st respondent has contended that since Smt.Waswad, whose name also figures in the resolution 14 produced by the 1st respondent, has been allowed to continue in service, she too should similarly be permitted to continue in service. This contention is without merit. Merely because Smt.Waswad has been continued in service, it would not entitle the 1st respondent to any relief, if in law, she is not entitled to the same. 18. The petition, therefore, succeeds. The impugned order is set aside. Rule made absolute. No order as to costs.