vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3235 OF 1999 WRIT PETITION NO.3235 OF 1999 WRIT PETITION NO.3235 OF 1999 The Chairman, Shri Maharani Radhabai Vidyarthi Vasatigraha & Anr. ... Petitioners V/s. Shri Mahadev Murlidhar Ganbawale & Anr. ... Respondents Mr.Rajesh Kachare for Petitioners Mr.Vishwanath Talkute for Respondent No.1 Mr.C.R. Sonawane, AGP, for Resp. No.2 CORAM: SMT.NISHITA SMT.NISHITA SMT.NISHITA MHATRE, J MHATRE, J MHATRE, J. DATED: SEPTEMBER 25, 2008 SEPTEMBER 25, 2008 SEPTEMBER 25, 2008 ORAL JUDGEMENT: ORAL JUDGEMENT: ORAL JUDGEMENT: . The petition challenges the order of the School Tribunal dated 31.3.1999 in Appeal No.33 of 1997. By this order, the School Tribunal allowed the appeal and directed the petitioner to reinstate respondent No.1 in service in the same position as he was when his services were terminated. Backwages have been ordered to be paid together with consequential benefits from November 1995 till reinstatement in service. The Education Officer has been directed to deduct the salary and other benefits payable to the appellant i.e. Respondent No.1 herein from the grants of the petitioner in the event the backwages were not paid within 40 days of the receipt of the judgment. : 2 : 2. The facts giving rise to the present petition are as follows: Petitioner No.1 is an institution which runs the school known as Girls High School Radhanagari of which the petitioner No.2 is the Headmistress. The school was established in 1987 with one division for each class from the 5th standard to 10th standard. The petitioners were accorded permission to start the second division of the 6th standard in the school on 20.10.1994. Prior to this on 1.8.1994. The petitioners appointed the first respondent on probation for two years. Respondent No.2 approved of the appointment of Respondent No.1 (for short, hereinafter referred to as the ‘Respondent’) on probation for two years by a communication of 12.11.1995. Five days thereafter, a direction was issued by the Education officer to close the additional division of the 6th standard since there was a lack of students. The petitioners were directed to close the additional division on 17.11.1995. It appears thereafter on 2.1.1996, the Education Officer approved of an additional division of the 7th standard on a non-grant basis. By a communication dated 23.3.1996, the petitioners then terminated the services of Respondent No.1 w.e.f. 30.4.1996. According to the petitioners, this order of termination was served on Respondent No.1 and has been acknowledged by him. The : 3 : respondent, however, contends that his services were terminated from July 2007. According to the respondent, he was permitted to work upto June 2007 and it was only in July 2007 that the petitioners prevented him from working in the school. Being aggrieved by the termination of his services, the respondent preferred an appeal before the School Tribunal. He contended that he was appointed against a clear permanent vacancy and that he had completed the probationary period satisfactorily. The respondent contended that he was deemed to be permanent in service in view of the fact that he had completed the two years as a probationer. He has pleaded further that the headmistress prevented him from teaching in the school and he was asked to leave the school premises. No reasons were assigned to him when he was obstructed from working on 1.7.1997. He therefore claimed that he should be reinstated with continuity of service and full backwages alongwith incidental benefits. 3. The petitioners contested the appeal by filing the written statement. They contended that a memo has been issued to the respondent because his behaviour and character was not good. This memo is dated 22.12.1995. The petitioner has also contended that they were directed by the Education Officer to terminate the services of the respondent since the additional division : 4 : of the 6th standard could not function due to the lack of students. The petitioners claim that they had informed the respondent of this decision of the Education Officer on 23.1.1996 itself. They further pleaded that the termination of service of the respondent was effected on 30.4.1996, after giving notice to the respondent dated 29.3.1996. It was also contended that the appeal had been filed after the period of one year and, therefore, was not maintainable in view of the limitation prescribed u/s 9 of the MEPS Act. 4. The School Tribunal after considering the evidence on record has held that the services of the respondent were terminated in July 1997. The Tribunal has also held that the respondent had proved that he had satisfactorily completed his probationary period in service. It was also held that the respondent’s services had been illegally terminated and that he was entitled to the reliefs claimed in the appeal. 5. The learned advocate for the petitioners has submitted that the petitioners had terminated the services of the respondent by the letter dated 29.3.1996. The termination was effected on 30.4.1996 and, therefore, the Tribunal has erred in concluding that the termination of services had taken place in July : 5 : 1997. He submits that there is voluminous documentary evidence on record to indicate that the respondent was not in service after April 1996. He contends that being a probationer, the respondent’s services could be terminated at any point of time. He points out that it was because the Education Officer had directed the petitioners to terminate the services of the respondent because there were very few students in the additional division created for the 6th standard. He further submits that the School Tribunal has misconstrued the documentary evidence on record which indicates that the respondent did not teach the students after April 1996. 6. The learned advocate relies on the judgment of a learned Single Judge of this Court (Marlapalle, J.) in the case of Head master, Amar High Schook, Aurangabad v/s. Lata d/o Gajanan Suryawanshi & anr., 2005(1)Mh.L.J. 1150 2005(1)Mh.L.J. 1150 2005(1)Mh.L.J. 1150 in support of his submission that on account of reduction of the strength of the students resulting in the abolition of the post, the petitioner had to terminate the services of the respondent who was a probationer and that such an employee was not entitled to reinstatement in service. 7. The learned advocate for the respondent states that the school tribunal has committed no error of law requiring interference from this Court. He urges that : 6 : this Court should not exercise its jurisdiction under Article 227 of the Constitution of India as the petitioners have not been able to demonstrate that the findings of the School Tribunal are perverse or that they are based on no material on record. The learned advocate submits that the respondent was not served with a copy of the termination letter dated 29.3.1996 and therefore, it was not possible for the respondent to challenge that order. In fact, submits the learned advocate, the respondent was permitted to continue in service upto 30.6.1997. It was only on 1.7.1997 that the Headmistress of the school prevented him from teaching the students and from entering the school premises. He submits that the petitioners could not have terminated the services of the respondent without following the procedure stipulated in the MEPS Act and the rules framed thereunder. He draws my attention to the fact that the respondent has worked for two years as a probationer and therefore, must be deemed to be a permanent workman on completion of two years of probation. He submits that a permanent employee cannot be removed by the management without recourse to rules 36, 37 or if the employee is to be declared surplus then it must be done in accordance with rule 28. He draws my attention to the judgment in the case of Farhana Banu Mohammed Ayub v/s. Jadeed Anjuman-E-Taleem & Ors., 2008(4) ALL MR 69 2008(4) ALL MR 69 2008(4) ALL MR 69 in support of his submission that once : 7 : the respondent is a deemed permanent employee he could not have been removed without following the due process of law. 8. The learned advocate for the respondent has taken me through the record and proceeding before the school tribunal. The record indicates that several documents were filed by both the parties. The respondent had filed marksheets of the students pertaining to the academic years 1996-97. In fact, these marksheets are dated 1.5.1997 and have been signed by the respondent as the class teacher and countersigned by the Principal. These Marksheets relate to the students of the 5th standard. The learned advocate for the petitioner submits that these marksheets appear to be fabricated because the original marksheets for the same class and for the same period do not bear the respondent’s signature. He submits that this would indicate that he was not working in the school upto May 1997 as contended. 9. Admittedly, these documents relied on by the advocate for petitioners were not produced before the School Tribunal. The School Tribunal therefore proceeded on the basis of the marksheets produced by the respondent. The other document as produced before the Tribunal was the time table which bore the name of the : 8 : teachers for the specific periods for which they were attended the class. The timetable filed by the petitioner does not bear the name of the respondent. 10. It appears that muster rolls pertaining to this period were produced by the Petitioners before the School Tribunal. However, the School Tribunal according to the learned advocate appearing for the petitioners has not taken cognisance of that document. The other document relied on is an extract from the muster rolls indicating that the respondent had been terminated from service in June, 1996. 11. In my opinion, the Tribunal has considered all these documents in the proper perspective. The Tribunal has committed no error by concluding that the termination of service was illegal. In fact, the documents which are produced indicate that the respondent was working even after the so called termination order was passed by the petitioners in March 1996. The School Tribunal has considered all these aspects of the matter and has held that the respondent is entitled to reinstatement in service. 12. The School Tribunal has also considered the fact that the petitioners had contended that they had terminated the services of the respondent by issuing him : 9 : a letter dt. 29.3.1996. The School Tribunal has noted the fact that the endorsement on the letter dated 29.3.1996 which was puportedly the signature of the respondent did not match with his signature on the Vakalatnama filed in the appeal. The Tribunal has matched the signature which the Petitioners claim is that of the Respondent with the other documents on record The Tribunal has concluded that the endorsement on the letter dated 29.3.1996 was not that of the respondent. In these circumstances, the Tribunal has held, and in my view rightly, that there was no termination of service in 1996 as contended by the Petitioners. The termination of service was effected in July 1997. The Tribunal has considered the evidence on record and has rightly held that the termination of service is illegal as it was effected in breach of the provisions of law. 13. The submission of the learned advocate for the Petitioners is that in any event they cannot reinstate the respondent because the additional division of the 6th standard is directed to be closed and, therefore, there is no vacancy available in order to appoint the respondent. He emphasises the ratio laid down by the learned Single Judge in the case of Head Master, Amar High School, Aurangabad & anr. v/s. Lata d/o. Gajanan Suryawanshi & anr., 2005(1) Mh.L.J. 1150. 2005(1) Mh.L.J. 1150. 2005(1) Mh.L.J. 1150. In this : 10 : judgment, the learned Single Judge has held that the services of a teacher on probation can be discontinued even though his performance during the probationary period was satisfactory. It is held that if there is no vacancy available for confirming the probationer on account of reduction in the strength of the students the question of confirming the probationery service against any existing post could not be conceded. The learned Judge has held that in a given case, although the provisions of section 5(3) of the MEPS Act do not envisage such a contingency, there was no legal bar for discontinuation of a probationer in employment on account of non-availibility of the post. The learned Judge has held that a teacher who has completed his probationary period in service need not be confirmed if there was no existing vacancy either at the time of his probationery period ended or little before. In the facts of that case, the management decided to discontinue the services of the employee on 4.1.1998 and the probationery period was to be completed on 8.1.1998. It is in these facts and circumstances that the learned Judge has held that the services of the employee could be terminated even though she had completed the period of probation. 14. In my opinion, the facts in the present case before me are clearly distinguishable from the facts : 11 : obtaining in Amar High School’s case (supra). The respondent herein was appointed even prior to the approval being granted for the additional division of the 6th standard. His order of appointment clearly mentions that he was appointed in a clear and permanent vacancy on probation for a period of 2 years teaching. Therefore, the submission of the learned counsel for the respondent that the respondent was appointed only for the purpose of teaching in the additional division of the 6th standard cannot be accepted. Furthermore, it is seen from the record before the Court that the respondent has taught not only the 6th standard but also the other classes during the period of his service. In these circumstances, the contention of the petitioners that the services of the respondent had to be terminated because of the reduced strength of the students in the 6th standard cannot be accepted. If indeed there was a reduced strength of students then it was necessary for the petitioners to follow the procedure under Rule 26 for declaring the respondent surplus on account of abolition of posts. However, the petitioners have failed to do so and are now attempting to take refuge under the direction issued by the Education Officer for terminating the services of the respondent. 15. The decision to terminate the services of an employee rests solely with the management of the school. : 12 : Assuming the Education Officer had decided not to approve of the appointment of the respondent, the petitioner could not have consequently terminated the services of the respondent in view of the judgment of the Full Bench in the case of St.Ulai High School & anr. v/s. Devenraprasad Jagannath Singh, 2007(1) Mh.L.J. 2007(1) Mh.L.J. 2007(1) Mh.L.J. 597 597 597. The petitioners are required to follow the mandatory procedure laid down in the MEPS Act and the Rules framed thereunder while terminating the services of an employee. Not having done so, the petitioners cannot contend now that the services of the respondent had been legally terminated. 16. Besides this, the management tried to contend before the Tribunal that the services of the employee were terminated on account of his poor conduct. However there is no material on record to establish this fact nor is there any material on record to indicate the nature of the misconduct, if any, committed by the respondent. Assuming he had committed a misconduct then it was necessary for the petitioners to hold an enquiry as provided under the MEPS Rules. 17. In my opinion, therefore, the Tribunal cannot be faulted for the view that it has taken. The respondent is entitled to reinstatement with continuity of service. : 13 : 18. As regards the backwages, the petitioners contend that the employee had been paid his salary from November 1995 till his services were terminated. That being the position, the Tribunal has justifiably granted backwages to the respondent. 19. I do not see any reason to exercise the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India in the present case. 20. The Education Officer has surprisingly filed an affidavit which merely paraphrases the decision in the appeal. The affidavit is vague and based on surmises and conjectures. A ludicrous averment has been made in the affidavit that the Presiding Officer of the School Tribunal had lost sight of the possibility of the Respondent signing differently on the appeal memo and the endorsement on the letter of termination. This averment is nothing but a conjecture on the part of the affiant i.e. the Deputy Education Officer, Zilla Parishad, Kolhapur. 21. In these circumstances, the order of the School Tribunal is upheld. Rule discharged. No costs. 22. Learned advocate for the Petitioner seeks stay : 14 : of this order. Stay granted for eight weeks.