WP/4840/2001 : 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4840 OF 2001 Deccan Education Society through its Hon. Secretary ... Petitioner V/s. Smt.Shubhangi S. Bhagat & Ors. ... Respondents Mr.V.D. Borwankar for Petitioner Mr.Vinod Tayade for Respondent No.1 Ms.Prachi Mhatre for Resp. No.3 Mr.S.N. Bhosale, AGP, for Resp. No.4 CORAM: SMT.NISHITA MHATRE, J. DATED: NOVEMBER __, 2010 JUDGMENT: 1. The Petition is directed against the order of the Presiding Officer, School Tribunal, Pune. By the impugned order, the School Tribunal has allowed the appeal filed by the respondent No.1 (for short, hereinafter referred to as the Respondent). It has further directed the petitioner to reinstate the respondent with continuity of service and full backwages as an assistant teacher w.e.f. 1.8.2000. 2. The undisputed facts are as follows: The respondent was appointed as an Assistant Teacher initially from 1.6.1996 to 31.3.1996. She was then appointed as a Junior Clerk from 1.4.1996 to 31.7.1996. Thereafter from 1.8.1996 to 30.6.1997, she worked as a part time teacher cum clerk. WP/4840/2001 : 2 : She was again appointed from 1.7.1997 to 13.6.1999 as a Junior Clerk on probation for two years. Thereafter, from 14.6.1999, she was appointed as an Assistant Teacher on probation for two yeas. Prior to the probation period drawing to an end she was issued an order of termination of her services on 1.8.2000. 3. Aggrieved by the action of the petitioner in terminating her services, the respondent approached the School Tribunal, Pune by preferring appeal No.74 of 2000. She also filed an application for condoning the delay in preferring the appeal. The main contention of the respondent in her appeal was that her services had been illegally terminated without following the procedure required under Rule 26 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Rules. No permission for retrenching her from service was obtained by the petitioner and therefore her termination from service was illegal. According to the respondent, her services were terminated despite there being a sufficient workload. The petitioner filed its written statement contending that the services of the respondent were in fact terminated by way of retrenchment from 1.8.2000 since there was a reduction in the number of students in the school. That had caused a reduction in the number of divisions per standard and consequently the number of students in the Marathi medium section of the school in the 8th to 10th standard had also dwindled. The petitioner contended that since the respondent was one of the junior-most teachers, her services were terminated by way of retrenchment. 4. The School Tribunal condoned the delay in fling the appeal. It upheld the respondent's contention that she would have to be treated as a permanent employee and that the provisions of Rule 26 of the MEPS Rules which were applicable had WP/4840/2001 : 3 : been breached. The School Tribunal was of the opinion that the Respondent was a probationer as an assistant teacher, her appointment being against a permanent vacancy and therefore she could not be considered as a temporary employee. In these circumstances, the Tribunal held that there was a breach of the provisions of Rule 26(1) and (2). The Tribunal further concluded that the order of termination of her services was illegal since it was not issued by the management. It had been issued on the basis of a resolution passed by the School Committee on 10.6.2000. The Tribunal was of the view that unless the order of termination is passed by the management of the school i.e. not the school committee, the termination of services cannot be considered to be legal. 5. The learned advocate appearing for the petitioner has submitted that the Tribunal is at fault for having relied on Rule 26 of the MEPS Rules when the respondent was not a permanent employee. He further submitted that Rule 28 (1) is applicable in the present case as the Respondent was a temporary employee. The learned advocate submitted that the finding of the Tribunal that the School Committee could not have terminated the services of the Respondent is erroneous. He urged that when the appointment of the Respondent had been made by the School Committee it had the implicit power to remove her from service. He relied on section 16 of the General Clauses Act in support of this argument. He then submitted that the Tribunal has completely erred in granting reinstatement with backwages. 6. The learned advocate for the respondent pointed out that while considering whether the respondent was entitled to any relief the Tribunal has taken into consideration her past service with the School and, therefore, has granted relief. He WP/4840/2001 : 4 : further submitted that in any event, the order of termination is bad in law as it has not been issued by the management of the school but by the school committee. According to him, the MEPS Rules do not empower the school committee to issue an order of termination and therefore the Tribunal had rightly set it aside. He places reliance on the judgement of a learned Single Judge in the case of Borivali Education Society & anr. vs. Gira T. Desai & Ors., 1997 VILJ 549. A similar view was expressed earlier in Writ Petition No.2205 of 1985 and other connected writ petitions by another learned Single Judge of this Court on 16.4.1986. The learned advocate further submitted that permission for retrenchment must be sought under Rule 26 where there is a reduction of workload which results in retrenchment of the services of an employee. 7. In the present case, admittedly the order of termination of services of the respondent was signed by the Headmistress of the school. It refers to a resolution passed by the school committee on 5/10.6.2010. Admittedly there was no resolution passed by the management of the school Under the MEPS Act and the Rules framed thereunder it is only the management of the school which is empowered to terminate the services of an employee. U/s 2(12) of the MEPS Act, the term `management' has been defined. It means : “2(12). “Management” in relation to a school, means, - (a) in the case of a school administered by the State Government, the Department; (b) in the case of a school administered by local authority that local authority; and (c) in any other case, the person or body of persons,whether incorporated or not and by whatever name called, administering such school; WP/4840/2001 : 5 : 8. Rule 2(1)(i) of the MEPS Rules defines the school committee as one which is constituted in accordance with the provisions of Schedule A. The School Committee consists of the Chairman (President of the Society or trust) or his nominee and three members nominated by the governing body, one member from amongst permanent teachers and one from the non-teaching staff. The headmaster is the ex-officio Secretary of the committee. One of the functions of the School Committee is the appointment of teaching and non-teaching staff of the school, except the head of the school. Thus, the School Committee is not the “management” of the school as defined in Section 2(12) of the MEPS Act. 9. Section 16 of the General Clauses Act which the learned advocate for the petitioner has relied on does not support the case of the petitioner. It provides that if a Central Act or Regulation confers a power to make any appointment, then, unless a different intention appears, the authority having the power to make the appointment shall also have the power to suspend or dismiss any person so appointed in exercise of that power. In the present case, the Legislature had made its intention known that the power to remove a person is vested only with the “management” of a school. Although the School Committee has been conferred with the power to appoint staff, other than the head of the school, its powers are circumscribed by the provisions of the MEPS Act and the Rules framed thereunder and therefore, the school committee would have no right to pass any orders terminating the services of an employee. 10. The School committee cannot be equated with the management of a school as held in Madanlal Jagannath Dalmia & anr. vs. R.R. Harijan & anr. Writ Petition WP/4840/2001 : 6 : No.2205 of 1985 alongwith other writ petitions. This is because it is not the body of persons which administers or runs the school. This Court has held that the School Committee is empowered under clause 3(c) of Schedule A of the MEPS Rules to appoint employees. It does not have any power to terminate the services of an employee. The power to terminate the services of an employee is reposed only on the “management” of the school as defined under section 2(12) of the MEPS Act. In these circumstances, in my opinion, the Tribunal has committed no error in allowing the appeal. 11. I need not dilate upon the second issue raised on behalf of the Petitioner, as to whether it is Rule 26 which is applicable or Rule 28 since the termination of service is illegal in view of the order being passed by the School Committee and not the management. 12. Writ Petition is dismissed. Rule discharged. No costs.