1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. Writ Petition No. 1905 of 2007 1. Lok Shikshan Sanstha, An establishment registered under the Societies Registration Act, as per Registration No. F-97 (N), having its Office at Shiraspeth, Nagpur-9, through its Secretary. 2. M.P. Deo Smriti Lokanchi Shala, A Government Recognized School, under the Management of Lok Shikshan Sanstha, having its office at Siraspeth, Nagpur-9, through Head Mistress.... ... .. PETITIONERS VERSUS 1. Uday s/o Manoharrao Jugade, Aged 26 years, Occ. Service, R/o C/o Shri Ashok Agwan, Chintamani Apartment, B-Building, Behind N.I.T. Garden, Trimurti Nagar, Nagpur- 440 022. 2. Education Officer (High School), Zilla Parishad, Civil Lines, Nagpur. 3. Education Officer (Secondary), Zilla Parishad, Civil Lines, Nagpur. ... ... RESPONDENTS Mr. Sameer Sohoni, Advocate, for the petitioners. Mr. A.P. Wachasundar, Advocate, for respondent no.1. Mrs. S.S. Wandile, A.G.P., for respondent nos. 2 and 3. 2 CORAM : Smt. Vasanti A. Naik, J. DATE : 3 rd DECEMBER, 2008 ORAL JUDGMENT 1. Rule. Rule made returnable forthwith. Petition is heard finally at the stage of admission, with the consent of the learned counsel for the parties. 2. By this petition, the petitioners impugn the order passed by the Presiding Officer, School Tribunal, Nagpur in Appeal No. STN/44/2003 on 14/1/2005. 3. Few facts giving rise to the petition are stated thus- The respondent no.1 had challenged the oral termination of his services as Peon, by the Headmaster of the petitioner no.2- School with effect from 20/6/1997, in an appeal under Section 9 of the Maharashtra Employees of Private School (Conditions of Service) Regulation Act, 1977 (hereinafter referred to as the Act of 1977 for the purpose of brevity). The petitioner no.1 is a society which runs and administers the petitioner no.2- School as also a Primary School. The respondent no.1 claimed to have been appointed on probation for a period of two years by an order dated 5/3/1994 in a clear vacancy 3 created due to the death of one Shri M.M. Vaidya on 29/3/1992. The appointment of the respondent no.1, according to the respondent no.1, was made by following the necessary procedure and after completion of the selection process. The respondent no.1 joined his services as a Peon on 7/3/1994. The Education Officer, the respondent no.2, had approved the appointment of the respondent no.1 on the post of Peon, by an order dated 17/4/1997. Immediately, on the next day, i.e. on 18/4/1997, the respondent no.2 informed the Headmaster of the petitioner no.2- School that the approval had been granted only for a period from 7/3/1994 till the end of the academic session and the order dated 17/4/1997 may be read to that effect. The case of the respondent no.1 before the Tribunal was that the petitioners had illegally published an advertisement in the daily newspaper dated 10/3/1999 for filling of the post of Peon in the petitioner no.2- School. The respondent no.1 had also applied for the said post in response to the advertisement. However, one Shri Pathak came to be appointed on that post. The respondent no.1 had also filed a writ petition before this Court which was numbered as Writ Petition No. 3151 of 1999, seeking a direction to the Education Officer to grant 4 approval to his appointment on the post of Peon and also to restrain the petitioner no.2- School from appointing any Peon other than the respondent no.1. The writ petition was, however, dismissed by an order dated 2/9/1999. 4. It appears that before filing the appeal before the School Tribunal, the respondent no.1 had approached the Labour as well as the Industrial Court, but the complaint filed by the respondent no.1 was dismissed on the ground that the Labour Court did not have jurisdiction to entertain and try the same. The appeal was filed by the respondent no.1 before the School Tribunal on 9/10/2003. It was the case of the respondent no.1, in the appeal, that the appointment of the respondent no.1 was treated to be permanent with effect from 7/3/1994 and that, an approval was given to his appointment for the period from 7/3/1994 onwards by the order dated 17/4/1997. It is stated by the respondent no.1 in the appeal memo that the respondent no.1 was holding a permanent post of Peon with effect from 7/3/1994 and, therefore, it was obligatory on the part of the petitioners to issue a letter of appointment in the prescribed proforma under the Rules. It was stated in the appeal memo that the termination of the respondent 5 no.1 was oral termination in spite of the fact that the respondent no.1 had been in the employment of the petitioners for a period of more than three years. It was also stated in the appeal memo that the petitioners deliberately did not appoint the respondent no.1 though he appeared at the interview in pursuance of the advertisement dated 10/3/1999. Mainly on a plea that the respondent no.1 was appointed in a clear vacancy and had worked for more than three years with the petitioners, the respondent no.1 sought a declaration that the termination of his services on 20/6/1997 was illegal and contrary to the provisions of the Act of 1977. The respondent no.1 also sought his reinstatement with back wages and the other benefits. 5. The petitioners had filed the written statement and raised an objection about the maintainability of the appeal on the ground of delay and laches as the appeal was filed after a period of more than six years after the alleged oral termination. It was stated in the written statement that since no approval was granted to the appointment of the respondent no.1 on the post of Peon, the Management decided to terminate his services. At that juncture, according to the petitioners, the respondent no.1 himself made a request to accommodate him 6 elsewhere. According to the petitioners, the respondent no. 1 agreed to work on daily wages in the Primary School and started working on daily wages even prior to the completion of the probation period. In view of the aforesaid fact, it was pleaded by the petitioners that the respondent no.1 could not have turned around and challenged the alleged oral termination. The petitioners stated in the written statement that the respondent no.1 had appeared at the interview in pursuance of the advertisement dated 10/3/1999 and since Shri Pathak had performed well, he was appointed on the post of Peon. 6. After considering the material on record and the submissions made on behalf of the parties, the Presiding Officer, School Tribunal, Nagpur, by the judgment dated 14th January, 2005, allowed the appeal filed by the respondent no.1 and directed the petitioners to reinstate the respondent no.1 on the post of Peon with continuity of service and back wages. The petitioners were also directed to pay costs of Rs. 2000/- to the respondent no.1. The judgment dated 14th January, 2005 is challenged in the instant writ petition. 7. Shri Sohoni, the learned counsel for the petitioners, 7 submitted that the reasons recorded by the Presiding Officer, School Tribunal, Nagpur, in the judgment dated 14th January, 2005, for allowing the appeal filed by the respondent no.1, are perverse and the impugned judgment is, therefore, liable to be set aside on this short ground. It is submitted on behalf of the petitioners that the School Tribunal committed a serious error in holding that the Education Officer ought to have decided the proposal of the respondent no.1 within a period of two months from the receipt of the same and having not done so, it was necessary to hold that the approval was deemed to have been granted. It is then submitted on behalf of the petitioners that after recording a finding that the respondent no.1 was working on daily wages though he was appointed in a clear vacancy on the post of Peon, the Tribunal ought not have held that this would not have affected the case of the respondent no.1 as he was duty bound to follow the directions issued by the Management. This finding, according to the learned counsel for the petitioners, is perverse and having admittedly worked on the post of Peon on daily wages in a Primary School, even during the probation period, the respondent no.1 was estopped from claiming that he attained permanency on the post 8 of Peon after the completion of the probation period. The learned counsel for the petitioners then submitted that the case of the respondent no.1 is palpably false as the respondent no.1 had applied for appointment on the post of Peon in pursuance of the advertisement dated 10/3/1999 and had also appeared at the interview. This, according to the learned counsel for the petitioners, falsifies his case that he was a permanent employee of the petitioners. This conduct of the respondent no.1 has also estopped the respondent no.1 from filing an appeal before the School Tribunal in the year 2003. It is lastly submitted on behalf of the petitioners that the School Tribunal exceeded its jurisdiction in holding that the Education Officer could not have reduced the strength of Class IV employees from 10 to 9 from 1995-1996 onwards. The learned counsel for the petitioners submitted that the respondent no.1 was asked to work on daily wages as the strength of the employees of Class IV category was reduced from 10 to 9 and the Education Officer had informed the petitioners that the approval could not be granted to the appointment of the respondent no.1 on the post of Peon in view of the reduction of strength. 9 8. Shri Wachasundar, the learned counsel for the respondent no.1, supported the judgment of the School Tribunal, and submitted that the respondent no. 1 was a permanent employee of the petitioners and his services could not have been terminated without following the due procedure as prescribed by Rules 26 and 28 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (hereinafter referred to as the Rules of 1981 for the purpose of brevity). The learned counsel for the respondent no.1 submitted that the respondent no.1 was not voluntarily working on the post of Peon in the other Primary School run and administered by the petitioner no.1- Society and hence, it cannot be said that the respondent no.1 is estopped from challenging his oral termination by the petitioners. The learned counsel for the respondent no.1 then submitted that the respondent no.1 had appeared at the interview held in pursuance of the advertisement dated 10/3/1999, without prejudice to his right, and, therefore, his appearance at the interview also cannot operate as an estoppel in filing an appeal. The learned counsel for the respondent no.1 relied on the order of approval issued by the Education Officer on 17/4/1997 to substantiate that the approval was 10 granted to the appointment of the respondent no.1 on the post of Peon from 7/3/1994 and the subsequent communication issued by the Education Officer on 18/4/1997 was of no effect. The learned counsel for the respondent no.1 relied on the decision in the case of St. Ulai High School & anr. Vs. Devendraprasad Jagannath Singh & anr. reported in 2007(1) Mh.L.J . 597 , to canvass that the grant of approval by the Education Officer is not a condition precedent for a valid order of appointment and want of approval will not invalidate an order of appointment, duly made. The learned counsel for the respondent no.1 submitted that the appointment of the respondent no.1 was on a clear vacancy and after the probation period, the respondent no.1 became permanent in the post of Peon and the refusal to grant the approval for the period of two years by the Education Officer could not have had any adverse effect on the order of his appointment. The learned counsel for the respondent no.1 then relied on the decision in the case of Mumbai Pradesh Arya Vidya Sabha Vs. Arun Sitaram Kuwar and ors. reported in 2006(4) Mh.L.J . 237 , to canvass that in case of reduction in number of classes or reduction in the strength of the staff, the provision of Rule 26 applies and it was, 11 therefore, necessary for the petitioners to comply with the provisions of Rule 26 before terminating the services of the respondent no.1. The learned counsel for the respondent no.1 sought for the dismissal of the petition. 9. Mrs. Wandile, the learned A.G.P. appearing on behalf of the respondent nos. 2 and 3, did not support the judgment passed by the School Tribunal for the reason that certain unwarranted remarks were made against the Education Officer. According to the learned Assistant Government Pleader, the Tribunal did not have jurisdiction to hold that the Education Officer could not have reduced the strength of Class IV employees from 10 to 9 and the reduction of strength was not proper. It is submitted on behalf of the respondent nos. 2 and 3 that in view of the reduction of strength, the approval was not granted to the appointment of the respondent no.1 on the post of Peon for a period of two years and immediately, on the next day of passing of the order dated 17/4/1997, it was clarified by the Education Officer that the approval to the appointment of the respondent no.1 was granted from 7/3/1994 till the end of the academic session. The learned Assistant Government Pleader submitted that the respondent no.1 had 12 not completed the two years' probation period and, therefore, he could not have been treated as an excess employee so as to invoke the provisions of Rule 26 of the Rules. It is submitted by the learned Assistant Government Pleader that one Shri Pathak was duly selected and appointed on the post of Peon after the vacancy arose in the year 1999, by following the due procedure, and the respondent no.2 has also granted approval to the appointment of Shri Pathak on the post of Peon. The learned Assistant Government Pleader supported the case of the petitioners. 10. I have considered the submissions made on behalf of the parties and have also perused the documents annexed to the petition. I have perused the impugned judgment dated 14th January, 2005. On a reading of the judgment dated 14th January, 2005, and perusal of the record, it is clear that the Tribunal exceeded its jurisdiction in recording the findings against the Education Officer as well as the Management. Though the respondent no.1 was appointed as a Peon by an order dated 5/3/1994, it is an admitted fact that before completion of the probation period, the respondent no.1 started working on daily wages as a Peon in a Primary School run by the 13 respondent no.1- Society. It appears from the record that the Education Officer had not granted approval to the appointment of the respondent no.1 on the post of Peon till 17/4/1997. On 13/11/1995, it appears that the Education Officer had informed the petitioners that the strength of the Class IV employees in the petitioner no.2- School had been reduced from 10 to 9. It is, thus, clear from the facts of the case that the respondent no.1 had not successfully completed his probation period as he had started working on daily wages in the Primary School run by the petitioner no.1- Society. Though the Tribunal recorded a finding that the respondent no.1 was working on daily wages in the Primary School run by the petitioner no.1- Society, the Tribunal committed a serious error in holding that the respondent no.1 could not have agreed to work on daily wages unless and until the petitioners had directed him to do so. The Tribunal committed a gross error in holding that it made no difference whether the respondent no.1 was actually working in the High School or Primary School and whether the respondent no.1 was receiving the salary as per the pay scale admissible to the post of Peon or was receiving the daily wages. The Tribunal committed a further error in holding that 14 the Education Officer could not have reduced the strength of Class IV employees from 10 to 9 by the letter dated 13/11/1995. The Tribunal held that it was necessary for the Education Officer to declare one surplus candidate who occupied the Class IV post, in stead of withholding the approval to the appointment of the respondent no.1 to the post of Peon. This observation of the School Tribunal was also incorrect as the respondent no.1 had not completed the probation period and it was made clear by the Education Officer to the petitioners that the strength of the Class IV employees had been reduced from 10 to 9. The Tribunal ought not have dealt with the issue of staffing pattern and the strength of the Class IV employees and the correctness of the order reducing the strength of Class IV employees, specially in the facts and circumstances of the present case. 11. Apart from these aspect, it is also necessary to consider that the respondent no.1 applied for the appointment to the post of Peon in pursuance of the advertisement dated 10/3/1999. This clearly shows that the respondent no.1 was not holding the post of the Peon on the date of his making the application and appearing at the interview. The respondent no.1 was not selected and one Shri Pathak was duly 15 selected and appointed on the post of Peon. It is necessary to note that the Education Officer has also approved the appointment of Shri Pathak on the post of Peon and the respondent no.1 had not joined Shri Pathak as a party to the appeal. The Tribunal was also not justified in holding that the correction letter dated 18/4/1997 issued by the Education Officer could not take away the right of permanency accrued to the respondent no.1 on completion of his probation period, as in the facts and circumstances of the case, it is clear that the respondent no.1 had not completed his probation period and the correction letter was issued immediately on the next day of the issuance of the approval letter dated 17/4/1997. The findings recoded by the Tribunal are perverse and could not have been reasonably arrived at. In the facts and circumstances of the case, there was no necessity whatsoever to comply with the provisions of Rules 26 and 28 of the Rules of 1981. The judgments in St. Ulai High School & anr. Vs. Devendraprasad Jagannath Singh & anr. reported in 2007(1) Mh.L.J . 597 and Mumbai Pradesh Arya Vidya Sabha Vs. Arun Sitaram Kuwar and ors. reported in 2006(4) Mh.L.J . 237 and relied on by the counsel for the respondent no.1 cannot be made 16 applicable to the facts of the case. 12. For the reasons aforesaid, the writ petition is allowed. The impugned judgment and order dated 14/1/2005 passed by the Presiding Officer, School Tribunal, Nagpur, is hereby quashed and set aside. Appeal STN No. 44/2003 filed by the respondent no.1 before the School Tribunal, Nagpur, is hereby dismissed. Rule is made absolute in the aforesaid terms. In the facts of the case, there would be no order as to costs. (Smt. Vasanti A. Naik) JUDGE RMP