1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 48 OF 1989 Jayashri Chitaman Abhyankar age major, occup. primary appellant/orig. Teacher, Bhusawal. plaintiff. versus The Railway North Colony Education Society, Bhusawal, by its President D.K. Moharir, age 50 years, occupation railway service, senior clerk respondent/orig. D.S.Office, Bhusawal. defendant. -------------------------------------------------------------------------------------------- Shri R.L. Chabda, Advocate, instructed by Shri P.R.Patil, Advocate for the appellant. None for the Respondent. -------------------------------------------------------------------------------------------- Coram : P. R. Borkar, J. Date : July 13, 2010 ORAL JUDGMENT 01. This second appeal is preferred by original plaintiff whose suit bearing Civil suit No. 169 of 1975 for setting aside her dismissal from service and for reinstatement and back wages is dismissed by the learned Civil Judge, Junior Division, Bhusawal on 29.12.1981 which judgment and decree is further confirmed by the learned District Judge in Regular Civil Appeal No.227 of 1982 decided on 16.1.1987. 2 02. Briefly stated, appellant's case is that she is S.S.C., S.T.C., D.Ed. She was appointed by Respondent as a primary teacher on 17`.8.1970 in the school run by the Respondent-Education society. According to her she possessed necessary qualification and she was appointed on clear permanent vacancy. Though no orders of her confirmation in the service were passed, she is deemed to have been confirmed and in spite of that, her services were illegally terminated by notice dated 2.4.1975. She, therefore, filed suit for reinstatement with back wages.\ 03. Respondent-Education society appeared in the suit and filed written statement at Exhibit 15. It is stated that plaintiff was teacher in the primary school; she was initially appointed on 19.8.1970, but she was not confirmed so as to claim benefits of permanency. According to the Respondent, appellant-plaintiff is bound by the provisions of the Bombay Primary Education Act, 1947. Appellant- plaintiff has served with Respondent as a teacher only for a particular period i.e. from 19.8.1970 to April 1971, from June 1972 to April 1973, from June 1973 to April 1974 and finally from June 1974 to April 1975. It is the case of the 3 Respondent that appointment of the appellant-plaintiff was as per the rules and for a particular academic year. She was given one months notice before termination of her services. In the circumstances, Respondent prayed for dismissal of the suit. 04. The trial court came to the conclusion that the suit was not maintainable in view of law laid down in Pana Jesuit School Society vs. Petter Dhavaji Basul, 1981 Mh.L.J. 110. It is held that at the most remedy of the appellant-plaintiff is to claim damages, but not the declaration or injunction amounting to specific performance of the contract. It is also held that the appellant-plaintiff was not permanent teacher as her each appointment was necessarily for a period of 10-11 months and, therefore, her removal cannot be said to be improper or illegal. 05. The first appellate court also held that the appellant-plaintiff was not a permanent teacher and that it is not that her services were illegally terminated. The District Court, therefore, dismissed the appeal. 4 06. This second appeal is admitted by order dated 28.1.1988 on substantial questions of law mentioned in ground Nos. (a) and (b) in the appeal memo, which read as follows. (a) Whether in view of Bombay Primary Education (Amendment) Rules, 1974, which came into force with effect from 8th February 1974, the Appellant is deemed to be a permanent teacher by reason of her continuous service in a permanent vacancy from August 1970 to April 1975. (b) Whether by reason of model conditions of employment of teachers framed under Rules 106 (3), 111(2) (c) of the Bombay Primary Education Rules as amended with effect from 8th February 1974 vide Conditions 5,6,9,1 the termination of Appellant's employment with the Respondent was illegal, arbitrary and without following the procedure prescribed under the said rules." 07. Heard Shri R.L.Chabda,learned Advocate, holding for Shri P.R.Patil, learned Advocate for the appellant. This matter was adjourned sufficiently, however, none appeared for the respondent. Learned Advocate has placed on record, the Bombay Primary Education (Amendment) Rules, 1974 which came into force from 8.2.1974. It is, therefore, obvious that these rules have come into force before termination of the appellant's services by notice dated 2.4.1975. Advocate Shri Chabda relied upon rule 9.2(1) of the said Rules, which reads :- 5 "9. Termination of Employment. 9.1. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 9.2. (1). The services of a permanent employee may be terminated by the management without assigning any reason on giving compensation as follows:- (i) Twelve months' salary (pay and allowances, if any) to the employee if he/she has been in the service of the school for ten years or more; (ii) Six months' salary (pay and allowances, if any) to the employee, if he/she has been in the service of the school for less than ten years." 08. Shri Chabda, learned counsel for the appellant also argued that the appellant had been in service from August 1970 and she became a permanent employee. However, both courts have held that the appointment every time was for a specific period of ten months i.e. from June to April and not continuously. There is no order on record making the appellant-plaintiff permanent teacher. In this behalf, reference to Rule 6 of the Bombay primary Education (Amendment ) Rules 1974 would be relevant which lays down that if a teacher is professionally qualified and appointed to a permanent vacancy, he will be regarded as a permanent teacher after a service of two years. So, the statutory provisions require that there should be continuous service for two years for claiming permanency. 6 09. It is the case of the Respondent that the service of the appellant had never been continuous inasmuch as there were breaks every year between April and June. Service was not for continuous period of 2 years so as to make the appellant permanent employee. 10. In my considered view, since the appellant- plaintiff has not rendered service continuously for two years and there is concurrent finding to that effect recorded by both the courts below, this appeal must fail. 11. Consequently, second appeal stands dismissed. pnd/SA48.89 (P.R.BORKAR, J.)