1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.2025 OF 2002 1. Kapil Shikshan Prasarak Mandal, Vinkar Colony, Nanded, Tal & Dist. Nanded. (through its Secretary). 2. Dr. Rajendra Prasad Primary School, Vinkar Colony, Nanded, Tal & Dist. Nanded, (through its Headmaster). .... PETITIONERS. (Ori. R.Nos.1 & 2). VERSUS 1) Vasant Jagdeorao Sirsath, age 32 years, occu. Terminated from service, r/o Vinkar Colony, Nanded, Tal & Dist. Nanded. 2) Education Officer (Primary), Zilla Parishad, Nanded, Tal & Dist. Nanded. 3) Shobha s/o Bajrang Gupta, age 28 years, occu. Service, r/o C/o Kapil Shikshan Prasarak Mandal, Vinkar Colony, Nanded, Tal & Dist. Nanded. .... RESPONDENTS. (R.No.1 Ori. Petitioner. R.No.2, 3: Ori.R.No.3, 4). ... Shri Vivek Dhage, Advocate for Petitioners. Shri V.S. Panpatte, Advocate for R.No.2. Shri R.R. Suryawanshi, Advocate for R.No.1. Shri S.S. Jadhavar, Advocate for R.No.3. ... 2 CORAM:S.S. SHINDE,J. RESERVED ON: 01.10.2009. PRONOUNCED ON: 12.10.2009. JUDGMENT: 1. This writ petition is directed against the judgment and order dated 17th April, 2002 passed by the Presiding Officer, School Tribunal, Aurangabad in Appeal No.131 of 1999. 2. The background facts of the case are as under: The present respondent no.1 was appointed as Assistant Teacher on 16.6.1994 in the petitioner school. It was the case of respondent no.1 before the School Tribunal that his appointment was on probation since 1st May, 1997. The Respondent No.3 Education Officer (Primary), Zilla Parishad, Nanded has granted approval to his service. After completion of the Summer Vacation, original appellant – respondent no.1 herein went to joint the school on 14.6.1999 at 3 about 11 a.m. but, the petitioners did not allow the respondent no.1 to sign the muster roll and to take classes. 3. The respondent No.1 challenged the oral termination by way of filing appeal before the School Tribunal. His case is that he is a permanent teacher and served since 1994 and the Education Officer also granted approval to his appointment till 30th April, 1998. Therefore, he is entitled to get the benefits of the provisions of Section 5(2) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter referred to as the M.E.P.S. Act, 1977). It is specific case of the respondent no.1 that the original respondent no.4 before the School Tribunal is the daughter of the President of the Society and for accommodating respondent no.4, the management is going to terminate his services without following due procedure of law. Her name is also shown on on the Muster Roll only to withdraw salary. She is residing with her 4 husband at Ambad and withdraws salary without rendering any services. The respondent no.1 served the petitioner institution till 30th April, 1999 and during that period he did not see respondent no.4 even on single occasion in the school. It is further case of the respondent no.1 that the petitioners herein have prepared false documents and submitted before the respondent no.3 Education Officer showing that the original respondent no.4 is serving in the school. Original respondent no.4 belongs to open category. Respondent no.1 herein also belongs to open category. There is no reservation to the backward category. There is no notice prior to termination of services of respondent no.1. He has completed probationary period of two years. Thus, the impugned termination is illegal. He prayed that the termination dated 14.6.1999 may be set aside. 4. The petitioners herein did not file written statement within the specified time and therefore, the appeal proceeded ex parte. The 5 respondent nos.3 and 4 have also not filed written statement. 5. The School Tribunal framed necessary points for its determination and came to the conclusion that the impugned termination order contravenes the procedure of law laid down under M.E.P.S. Act and the Rules framed thereunder and further held that the original appellant – respondent no.1 herein is entitled for reinstatement. 6. Being aggrieved by the judgment and order passed by the School Tribunal,this writ petition is filed. 7. The learned Counsel for the petitioners submitted that an application was filed praying therein that the written statement of the petitioners should be taken on record. However, the School Tribunal rejected the said application and consequently, the proceedings conducted by the School Tribunal are ex parte. Therefore, in the interest of justice, the impugned judgment and order of the School Tribunal deserves to be 6 quashed and set aside. It is further submitted that the respondent no.1 teacher was not appointed on clear vacant post. The said appointment was on reserved post for scheduled tribe category. It is further submitted that even the Education Officer (Primary) has also granted approval with an endorsement that approval to the services of the respondent no.1 is granted subject to filling in the backlog. It is further submitted that respondent no.1 was not at all in service since 17th March, 1998. The appeal filed by the respondent no.1 challenging the oral termination dated 14.6.1999 was filed belatedly. In fact, to bring the appeal within limitation, the respondent no.1 has taken imaginary date i.e. 14.6.1999 of his oral termination. It is further submitted that the respondent no.1 himself remained absent since 16th March, 1998. Notice was also issued to respondent no.1 on 30th March, 1998 in which it was mentioned that the approval was granted to the appointment of respondent no.1 on the condition to fill the backlog. The respondent no.1 himself was absent from duties since 16th 7 March, 1998. Vide letter dated 30th March, 1998, services of respondent no.1 were terminated w.e.f. 1st May, 1998. It is further submitted that the letter dated 30th March, 1998 was sent to respondent no.1 by Registered Post A.D. However, respondent no.1 had not accepted the said letter sent by R.P.A.D. It is further argued that the respondent No. 1 himself has admitted that he was not allowed to sign the Muster Roll for the academic year, 1998-99 and that itself shows that respondent no. 1 was not at all in service of petitioner nos.1 and 2 since 16th March, 1998. There are no signatures of respondent no.1 on the muster roll since 16th March, 1998. It is further argued that the services of respondent no.1 are terminated w.e.f. 1st May, 1998 vide letter dated 30th March, 1998. It is further case of the petitioners that respondent no.1 made false statement that he worked from 1st May, 1997 to 30th April, 1999. It is submitted that respondent no.1 voluntarily left service and never turned up after 16th March, 1998. Therefore, as per Rule 16 of the M.E.P.S. 8 Rules, 1981, the respondent no.1 is deemed to have abandoned services as he failed to apply for leave within seven days from the date of absence. It is further submitted that Respondent no.1 cannot be said to be a permanent employee as he was appointed on the reserved post. It is further submitted that the respondent no.1 is not in service since 16th March, 1998. Therefore, it cannot be said that to accommodate respondent no. 3 herein the services of respondent no.1 are terminated. It is further submitted that the appointment of respondent no.3 herein is not at all on the post reserved for reserved category. It is further submitted that the Presiding Officer, School Tribunal, Aurangabad passed orders on 23rd August, 2001 stating that it would not be justified to accept the written statement. It is further submitted that at no point of time the Presiding Officer, School Tribunal passed “No W.S.” order and therefore, written statement should have been taken on record. It is further submitted that though the application was filed by the petitioners on 7.11.2001 praying therein to set aside the order dated 23rd August, 2001 9 refusing the petitioners to file written statement. However, the School Tribunal has rejected the said application. It is further submitted that the Presiding Officer has directed the petitioners to reinstate respondent no.1 within 40 days with full back wages and further consequential benefits. The School Tribunal has not taken into consideration the fact that the respondent no.1 is not in service since 17th March, 1998. It is further submitted that since the order passed by the School Tribunal is without referring to the written statement of the petitioners, the same deserves to be set aside. 8. The learned Counsel for the respondent no.1 submitted that the School Tribunal, after taking into consideration the entire evidence placed on record and after hearing the Counsel for the parties, has passed the impugned judgment and order. It is further submitted that the written statement was not filed by the petitioners herein for years together and consequently, the School Tribunal, after giving sufficient opportunity to the petitioners, allowed the appeal filed by the 10 respondent no.1. It is submitted that the petitioners were heard at length before the impugned judgment and order was passed by the School Tribunal. It is further submitted that the attempt on behalf of the petitioners institution was to dislodge the respondent no.1 from service to accommodate respondent no.3 herein, who is daughter of the President of the Institution. The learned Counsel further submitted that appointment of the respondent no.1 to the post was after following proper procedure, he is well qualified for the post of Assistant Teacher, the petitioner school is a primary school receiving 100% Grants from the Government, there were four sanctioned posts of Assistant Teachers in the said school for the academic year, 1994-95 and respondent no.1 came to be appointed to one of the posts out of four sanctioned posts. It is further submitted that the appointment of the respondent no.1 was on clear and permanent vacant post. Respondent no.1 joined services w.e.f. 16.6.1994 and to that effect, Education Officer has granted approval for the academic year, 1994-95 i.e. for the 11 period from 16.6.1994 to 30.4.1995. The Education Officer further continued his approval to the services of the respondent no.1 vide his order dated 16.10.1995 for the period from 1st May, 1995 to 30th April, 1996. Therefore, the learned Counsel would contend that if the period is taken into consideration from 16.6.1994 till 30th April, 1996, it would be clear that respondent no.1 was continuous in service and approval was also granted by the Education Officer for the entire period of two years. It is further submitted that the appointment of respondent no.1 was made from the open category. The learned Counsel further submitted that in the approval letters dated 8th March, 1995 and 16th October, 1995 it is specifically mentioned in column 6 that the appointment of the respondent no.1 is shown from open category. It is further submitted that the petitioners no.1 and 2 also forwarded proposal for granting approval to the services of the respondent no.1 for the academic year, 1996-97 and the Education Officer (Primary), Zilla Parishad, Nanded was also pleased to grant his approval in favour of 12 respondent no.1 by his letter dated 27th March, 1997 for the period from 1.7.1996 to 30.4.1997. It is further submitted that the petitioners passed a resolution in School Committee on 15.4.1997 and thereby resolved that the respondent no.1 is appointed as an Assistant Teacher w.e.f. 1st May, 1997 on probation for two years. As per the above said resolution passed by the School Committee, the Secretary of the Management issued appointment letter on 15.11.1997 thereby appointing the respondent no.1 as Assistant Teacher in the petitioner no.2 school in the pay scale of Rs..1200-2040 in continuation to the earlier service of the respondent no.1 w.e.f. 1st May, 1997 for the period of two years. The management forwarded the proposal for getting approval of the Education Officer for the services of the respondent no.1 and the Education Officer granted his approval for the period from 1.5.1997 to 30.4.1998. The learned counsel for the respondent no.1 invited my attention to the copies of the resolution passed by the School Committee dated 15th April, 1997 and submitted 13 that the petitioner management itself has appointed the respondent no.1 on probation or two years as Assistant Teacher. The learned counsel further submitted that the approval by the Education Officer was for the period from 16.6.1994 to 30.4.1995 and the name of the respondent no.1 was at Sr.No.4 in the approval list. Further approval was granted for the period from 1.5.1995 to 30.4.1996 and name of respondent no.1 was at Sr. No.2 and for the period from 1.7.1996 to 30.4.1997 again the name of the respondent no.1 was at Sr.No.4 in the approval list and the Education Officer further granted approval for the period from 1.7.1997 to 30.4.1998 in favour of the respondent no.1. Therefore, the learned Counsel would submit that the appointment of respondent no.1 was on permanent and clear vacancy and the management has also given appointment on probation. Therefore, his case purely falls under the provisions of Section 5 of the M.E.P.S. Act, 1977. 9. The learned Counsel further submitted that 14 the respondent no.1 was in service w.e.f. 16.6.1994 to 14.6.1999 i.e. till his oral termination dated 14.6.1999. Being aggrieved by the said oral termination, the respondent no.1 approached the School Tribunal and the School Tribunal has rightly allowed the appeal filed by the respondent no.1. He further submitted that the impugned judgment and order passed by the School Tribunal is after hearing both sides. It is further submitted that the letter dated 30th March, 1998 annexed to the writ petition at Annexure P-3 is prepared afterthought. The said written termination order dated 30th March, 1998 was never served upon the respondent no.1. The respondent no.1 had no knowledge about the so called termination order dated 30th March, 1998. The learned Counsel further submitted that the perusal of the contents of the said letter would show that services of respondent no.1 were w.e.f. 1st May, 1997 to 30th April, 1998 and same were approved by the Education Officer on condition of fulfillment of the backlog and in the same letter, it is 15 mentioned that the respondent no.1 was absent from 15th March, 1998. Therefore, the learned Counsel wold submit that from the reasons given in the letter, it is clear that the petitioners have prepared this letter afterthought. It is further submitted that the respondent no.1 was never appointed on the post which is reserved for any reserved category and, therefore, the writ petition deserves to be dismissed. It is further submitted that to show that the respondent no.1 was in service after 15th March, 1998, it is relevant to point out that one letter dated 19th March, 1998 was issued by the Block Education Officer, Panchayat Samiti, Nanded to the Head Master i.e. petitioner no.2 in which it was directed that the services of the respondent no.1 were necessary for checking the answer sheets of 4th class Board Examination. The said letter also mentions that the respondent no.1 should be immediately relieved w.e.f. 6th April, 1998 at 10 a.m. to join at Nehru English School, Somesh Colony, Behind Kala Mandir, Nanded. In response to the said letter by Block Education Officer, petitioner no.2 Head Master issued relieving 16 letter dated 6th April, 1998 thereby directing the respondent no.1 that his services were required for checking Class 4 Board Examination papers and, therefore, he was relieved for the said purpose w.e.f. 6th April, 1998. As per the directions issued by petitioner no.2, the respondent no.1 joined at the above said address for checking 4th Class Board Examination papers and obeyed the orders. After completion of paper checking work, the Education Extension Officer, Mudkhed-2, Panchayat Samiti, Nanded vide his letter dated 27th April, 1998 relieved the respondent no.1 to joint the school. In the said relieving letter dated 27th April, 1998, the Education Extension Officer mentioned that the work of checking of Board Examination papers is completed w.e.f. 6th April, 1998 to 27th April, 1998 and, therefore, he is relieved from 27th April, 1998 afternoon. It is further submitted that the contention of the petitioners that respondent no.1 was not in service w.e.f. 15th March, 1998 is totally incorrect and baseless. It is further submitted that on the date of issuance of letter the respondent no.1 was in 17 service and the Head Master on 20th August, 1998 sent the respondent no.1 to the office of the District Social Welfare Officer for collecting forms of handicapped / disabled students. The said letter has been written by the respondent no.1 in his own handwriting, which is signed by the Head Master. The learned Counsel further submitted that to prove his contention that the respondent no.1 was in service on the disputed date i.e. 15th March, 1998, respondent no.1 has produced on record the monthly extracts/Civil List of June, 1998 and July, 1998, wherein the name of the respondent no.1 is at Sr.No.4. 10. It is further submitted that the very appointment of the respondent no.3 is beyond sanctioned posts in the school. Merely because she is daughter of the President of the Institution, she came to be appointed from open category in excess of the sanctioned posts. Therefore, the appointment of respondent no.3 itself is illegal and only to accommodate respondent no.3 herein, the record is created by the school against the respondent no.1 to remove him from service so that respondent no.3 can be 18 accommodated on the sanctioned post in his place. It is further submitted that the Education Officer himself and by appointing his Officers has ascertained as to whether respondent no.3 is really serving in the school or not and, upon inquiry, it was found that respondent no.3 was not present in the school during the school hours. The learned counsel further submitted that there is one clear sanctioned post available at present in the petitioner school. 11. The learned Counsel further submitted that there are four teachers working in the petitioner school, which is clear from the extract of Muster Roll of January and February, 1998 wherein the dates of appointments of all the teachers are mentioned. The date of appoint of one teacher namely Mr. Sunil Patil is shown as 11.6,1993. Mr. Sirsat Vasant Jagdeorao – present respondent no.1 is shown to have been appointed on 16.6.1994, Sau. Jaybhay Nanda Marotirao is shown to have been appointed on 19.6.1995 and Smt. Shaikh Rehana A. Azeez is shown to have been appointed on 19.6.1995. Therefore, the learned Counsel 19 would submit that from the said extract of Muster Roll, it is clear that respondent no.1 stood at Sr. No.2 in the list. Therefore, it is clear that the appointment of the respondent no.1 is not against a reserved post. 12. In support of his contention that appointment of respondent no.1 was on permanent and vacant post as contemplated under Section 5(2) of the M.E.P.S. Act, 1977, the learned Counsel relied upon the reported judgment of this Court in case of Hareshwar Shikshan Prasarak Mandal and another vs. Rajashree Sarjerao Lokhande and others [2007(1) Mh.L.J. 681] and invited my attention to paragraphs 12 and 19 wherein it was held by this Court that the respondent-Assistant Teacher therein rendered unblemished service from June, 1988 till June, 2004 and she cannot be deprived of her claim for permanency and, as such she acquired deemed confirmation by virtue of Section 5(2) of the M.E.P.S. Act, 1977. The learned Counsel further submitted that 20 even though appointment letter mentions appointment for one year and if the appointment is against clear and permanent vacancy, then the said appoint must be considered as one on probation. In support of this contention, he placed reliance on the reported judgment of this Court in case of Jagannath Gopala Gaidhani and another vs. Minister, Urban Development, Govt. of Maharashtra, Mantralaya, Mumbai and others [2007(1) Mh.L.J. 688] and more particularly paragraph 7 of the said judgment. The learned Counsel further placed reliance on reported judgment of this Court in case of President, Mahila Mandal Sinnar and another vs. Sunita Bansidhar Patole [2007(2) Mh.L.J. 105] and submitted that once the post wherein the respondent is appointed was a permanent vacancy, and unless it is specifically disclosed by the roster that the same was meant to be filled in by appointment of reserved category candidate, the provisions of section 5(1) of the M.E.P.S. Act, 1977 are clearly attracted. Once the appointment is made in terms of Section 5(1) of the M.E.P.S. Act, 1977, it takes colour of 21 appointment on probation. The learned Counsel further placed reliance on reported judgment of this Court in case of Ramchandar Ramadhar Yadav vs. Hyderabad (Sind) National Collegiate Board and another [2006(2) Mh.L.J. 530] and submitted that grant of approval by Education Officer to appointment of petitioner in that case has been held as not relevant to decide the status of the petitioner therein. The learned Counsel, therefore, would submit that once there is appointment on clear and vacant post, the said appointment is under Section 5 of the M.E.P.S. Act, 1977. Though the appointment is given on year to year basis, if the post is vacant and permanent in nature, in that case the said appointment has to be considered on probation. Approval to the services of the respondent no.1 is not the criteria to decide the status of his appointment. Therefore, the learned Counsel submitted that the impugned judgment and order cannot be faulted with and, therefore, no interference is warranted in writ jurisdiction. 22 13. The learned Counsel appearing for the Education Officer (Primary), Zilla Parishad, Nanded – respondent No.2 vehemently opposed the prayers in the petition and submitted that the petitioners, with an intention to accommodate the Respondent No.3, who is daughter of the President of the petitioner – institution, has created record against respondent no.1 so that he can be removed from the service and in his place the respondent no.3 can be absorbed in permanent service. The learned Counsel further submitted that as per the record maintained by the office of the Education Officer, there are only four sanctioned posts in the petitioner – school. One of the four sanctioned posts, appointment of respondent no.1 was approved by the Education Officer. It is further submitted that there is clear communication by the father of the respondent no.3, which is part of the record of the Education Officer, that since respondent no.1 is removed from service, in his place Smt. Gupta Shobha Bajrang is appointed and, therefore, approval may be given to her appointment. Therefore, the learned Counsel for the Education 23 Officer – respondent no.2 would submit that the whole action of the petitioners to dislodge the respondent no.1 from service is with malafide intention to accommodate respondent no.3. The learned Counsel further tendered communication by the President of petitioner – institution who is father of respondent no.3 and also the certificate of the Head Master and submitted that these documents would clearly show that respondent no.3 is appointed in place of respondent no.1. It is further submitted that on number of occasions the representative of respondent no.2 visited the petitioner school and found that respondent no.3 was not present on duty in the school. The learned Counsel further submitted that the appointment of respondent no.3 at the beginning was not on sanctioned post. He further invited my attention to the fact that at the time when approval was granted to the services of the respondent no.1 in 1995, out of were four sanctioned posts, two candidates were from Scheduled Tribe Category. The learned Counsel, therefore, would submit that the petition deserves to be dismissed. 24 14. The learned Counsel for respondent no.3 submitted that before the School Tribunal, respondent no.3 adopted the written statement filed by the petitioners herein. He further submitted that there is no “No W.S.” order passed by the School Tribunal and, therefore, there is no question of not accepting the written statement at the later stage of the proceedings. It is further submitted that though there is no challenge by the petitioners herein or respondent no.3 to the interim order dated 11.12.2001 passed by the School Tribunal rejecting the application of the