1 W.P.No.7905.08 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7905 OF 2008 Shri Shaikh Barkatullah Hussein ... Petitioner v/s 1. Muslim Education Committee,Sangli 2. Muslim Education Committee Sangli C/o.Muhmadi Anglo Urdu High School, Sangli, through the Head Master 3. The Education Officer (Secondary). Zilla Parishad, Sangli. ... Respondents Mr.N.V.Bandiwadekar for the petitioner. Mr.A.M.Kulkarni for respondent No.1. Mr.P.I.Khemani, A.G.P. for respondent No.3. CORAM: SMT.NISHITA MHATRE, J. DATED: 1ST OCTOBER, 2010 ORAL JUDGMENT: 1. The petition has been filed to challenge the order of the School Tribunal dated 22.9.2008 dismissing the appeal filed by the petitioner. 2 W.P.No.7905.08 2. The petitioner is qualified with M.A. and B.Ed. degrees. The management of the school advertised the vacancy for the posts of teachers in different subjects. One of the vacancies advertised was for a part-time teacher in the subject of Marathi for the Urdu medium school of the management i.e. respondent No.2 herein. The petitioner applied for the post on 21.1.1990 and was called for an interview. Since the petitioner passed the interview, he was issued a letter calling upon him to appear for the teaching test which was held on 13.2.1998. He was successful in that test also. On 14.2.1998 respondent No.2 issued an appointment letter to the petitioner as a part-time teacher in respondent No.2 school. The appointment letter clearly states that his appointment was on probation for two years on a monthly salary of Rs.700/- in the pay scale of Rs. 1400-40-2600. On 13.1.2000, a letter was issued to the petitioner informing him that the probation period of two years was coming to an end. The petitioner continued to work in the academic year i.e. 2000-2001. However, on 31.3.2001, the management informed the petitioner that his services would come to an end on 30.4.2001 as he was a part-time teacher of the school. Aggrieved by this decision of the management to terminate his services, the petitioner preferred an appeal being Appeal No.110 of 2001 before the 3 W.P.No.7905.08 School Tribunal. Since there was a delay in approaching the School Tribunal, the petitioner also filed an application for condoning the delay. The Tribunal condoned the delay in filing the appeal on 12.8.2005 after hearing the petitioner as well as respondent Nos.1 and 2. Although respondent No.4 filed his written statement, respondent Nos.1 and 2 i.e. the management of the school, failed to do so. The Tribunal proceeded to hear the appeal on merits without the written statement of respondent Nos.1 and 2 being placed on record. Arguments were heard and the matter was fixed for orders. It appears that on 25.5.2008 respondent Nos.1 and 2 requested the Tribunal to set aside the order of “No written statement” passed against them and sought permission to allow them to file the written statement. The permission was disallowed due to which respondent Nos.1 and 2 filed Writ Petition No.231 of 2008. The order of the Tribunal was set aside by this Court on 28.4.2008. The Tribunal was directed to take on record the written statement filed by respondent Nos.1 and 2 and was further directed to decide the matter expeditiously. 3. After taking on record the written statement and after hearing the parties, the School Tribunal dismissed the appeal of the petitioner. The Tribunal was of the view that since the 4 W.P.No.7905.08 petitioner was appointed as a part-time teacher, he was a temporary employee. According to the Tribunal, the management had not violated any provisions of law by terminating the services of the petitioner by giving him one month’s notice as he was a temporary employee. Hence the present petition. 4. Mr.Bandiwadekar for the petitioner urges that the order of the Tribunal be set aside as it is contrary to the provisions of law. He points out that the petitioner having been appointed as a part-time teacher in a permanent vacancy, which was a sanctioned post, could not be considered as a temporary employee. He submits that the appointment was made after going through the entire gamut of advertising the post, an interview being held and the selection process being completed. He points out further that respondent Nos.1 and 2 had issued an appointment letter to the petitioner indicating that he was appointed on probation as a part-time employee. Admittedly, he had completed two years of service and therefore was deemed to be a permanent part-time teacher. The learned advocate therefore submits that the petition should be allowed. 5. Mr.Kulkarni appearing for respondent No.1 contends 5 W.P.No.7905.08 that the advertisement itself showed that the requirement of the management was of a part-time teacher. He submits that once the petitioner had accepted the appointment as a part- time teacher, he cannot contend that his appointment was against a permanent vacancy. It is only when there is a temporary vacancy, according to Mr.Kulkarni, can a person be appointed on a part-time basis. Although at the point when the petitioner was appointed, there was a need for a part-time teacher, the post has now become a full time post and, therefore, the petitioner cannot be continued in that post. Mr.Kulkarni points out that for the academic year 1998-99, the total number of sanctioned posts of teachers was 28 and a half and for the subsequent year it was 29. According to him, the half post i.e. for a part-time teacher was cancelled and the post was converted into a full time post for a Shikshan Sewak. Mr.Kulkarni submits that the petitioner ought to have applied to be appointed as a Shikshan Sewak instead of which he preferred the present appeal. He urges that although the appointment letter indicates that the appointment of the petitioner was made on probation, it is apparent that it was issued erroneously. Mr.Kulkarni urges that when there is a temporary vacancy, the question of appointing a person on probation, much less on a permanent basis, does not arise. According to 6 W.P.No.7905.08 the learned advocate, a part-time post by its very nature is a temporary post and therefore made against a temporary vacancy. Mr.Kulkarni relied on the judgment of the Division Bench of this Court in the case of Mathuradas Mohta College of Science, Nagpur v/s R.T.Borkar & ors., reported in 1997 (2) Mh.L.J. 168. 6. The judgment of the Tribunal, in my opinion, proceeds on an erroneous footing. The vacancy which arises in a school may be either permanent or temporary. A vacancy could be created when one of the regular teachers or permanent teachers is unable to conduct the classes for some reason. In these circumstances, it can be said that the duration of the vacancy is temporary and, therefore, the question of appointing anybody on a permanent post against such a vacancy, does not arise. The permanent post falls vacant temporarily and the management has to make alternative arrangements till the permanent teacher resumes duty. In these circumstances, obviously, the vacancy would only be temporary in nature and, therefore, no person can be appointed permanently in that post. Such vacancy could be filled in without going through the rigmarole of advertising the post, selection, etc. Therefore, a temporary vacancy can occur of a permanent post. 7 W.P.No.7905.08 7. On the other hand, when a permanent post falls vacant, a teacher would have to be employed on a permanent basis subject to the provisions of the M.E.P.S. Act. The appointment would have to be made after advertising the post and selecting a suitable candidate. Initially such a teacher would have to be appointed on probation for two years. If the teacher was found to be suitable for the post during the probation period, there would be no impediment in confirming the teacher in service as a permanent employee against a permanent vacancy. However, this does not mean that a permanent vacancy cannot be filled in by a part-time teacher. If the need of the school is for the part- time teacher permanently, it can always fill the post by employing the services of a part-time teacher. Such an eventuality would occur when there are insufficient students or the workload for a particular subject would not justify a full time appointment. A part-time teacher to the school need not necessarily be appointed against a temporary vacancy. The two concepts still are different. The teacher who is appointed against a temporary vacancy need not be a part- time teacher because the workload for such a teacher in such a vacancy may be sufficient to employ a full time teacher. The duration of the vacancy is limited, inasmuch as, the vacancy exists till such time as the permanent teacher 8 W.P.No.7905.08 resumes work or a permanent teacher is appointed through the selection process. However, the employment of a part- time teacher is made in circumstances which do not justify the appointment of full time teacher. As I have already stated, a full time teacher is appointed when there is a sufficient workload warranting such appointments. However, a part-time teacher can always be appointed when the workload is insufficient, either because the number of students is less for a particular subject or because the number of periods required to be taught is less. I am therefore unable to accept Mr.Kulkarni’s submission that a part-time teacher has to be appointed only against a temporary vacancy or that by its very nature a part-time post is a temporary post. 8. In the present case, the petitioner undoubtedly has been appointed on probation by letter dated 14.3.1998. However, this appointment was on a part-time basis. He continued to work till he was issued a letter dated 13.1.2000 indicating that his service as a probationer would come to an end. Thus, he had completed service as a probationer by working from 1998 to 2000. The petitioner was continued in service even thereafter till his services were terminated on 30.4.2001. 9 W.P.No.7905.08 9. Under Section 5(2) of the M.E.P.S. Act, every person who is appointed to fill in a permanent vacancy, shall, on completion of his period of probation, be deemed to have been confirmed. However, in the case of Shikshan Sewak, the period of probation is of three years. Thus, when the management itself had appointed the petitioner as a probationer against a permanent vacancy for a part-time post, the learned advocate for respondent No.1 cannot now contend that the letter was issued erroneously. He submits that an affidavit has been filed to that effect. It is well settled in the case of Commissioner of Police, Bombay v/s Gordhandas Banji, reported in A.I.R. (39) 1952 SC 16, that affidavits filed by a person cannot explain the true import of the order passed by him at an earlier point in time. Mr.Kulkarni has sought to establish before me that the appointment was on a temporary basis by pointing out certain documents which indicate that the petitioner had been appointed on a part-time basis. However, in my view, these documents do not advance the case of respondent Nos. 1 and 2. There is no dispute that the petitioner was appointed as a part-time teacher. The dispute is only whether he was appointed against a temporary vacancy or a permanent vacancy. No documents have been produced either before the Tribunal or before this Court indicating that 10 W.P.No.7905.08 the appointment was made against a temporary vacancy. Mr. Kulkarni was unable to point out any provision under the M.E.P.S. Act or the Rules framed thereunder, which does not permit the appointment of part-time teachers against a permanent vacancy. 10. In the case of Mathuradas (supra), which has been relied upon by Mr.Kulkarni, the vacancy against which the employee in that matter was appointed, was a non- permanent/temporary vacancy. He was appointed on a clock hour basis. In these circumstances, the Division Bench of this Court held that since there was no clear vacancy, the employee in that case could not be said to be a permanent teacher when he was appointed on a temporary vacancy. This judgment, in my opinion, does not apply to the facts and circumstances in the present case where there is no material on record to indicate that the appointment was not against a permanent vacancy. In fact, the circumstances sorrounding the appointment of the petitioner indicate that the appointment was made against a permanent vacancy. 11. In my view, the order impugned in the petition must be set aside. 11 W.P.No.7905.08 12. The writ petition is allowed. Rule made absolute in terms of prayer clauses (b) and (c). 13. On the request made by Mr.Kulkarni , which is opposed by Mr.Bandiwadekar, this judgment and order is stayed for a period of eight weeks from today. ..... 12 W.P.No.7905.08