(1) WP. 7782.2009+1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7782 OF 2009 Shri Uttam S/o Kondiba Bhujbale Age : 29 years, Occu.: Service as Physical Education Teacher, R/o C/o Manik Secondary School Chikhali (Bk.), Tq. Kinwat, District : Nanded .. Petitioner (Orig. Resp. no.3) VERSUS 1. Shri Wakore S/o Govindrao Sheshrao Age: 31 years, Occu.: Nil, R/o Katkalamba, Tq. Kandhar, District : Nanded 2. Late Manikrao Guruji Samajik Vikas Sanstha, Katkalamba, Tq. Kandhar, District : Nanded, Through its Secretary 3. Manik Secondary School, Chikhali, (Bk.) Tq. Kinwat, Dist. Nanded Through its Head Master 4. The Education Officer (Secondary) Zilla Parishad, Nanded .. Respondents (Resp.No.1 is orig.appellant) WITH WRIT PETITION NO. 249 OF 2010 1. Late Manikrao Guruji Samajik Vikas Sanstha, Katkalamba, Tq. Kandhar, District : Nanded, Through its Secretary 2. Manik Secondary School, Chikhali (Bk.) Tq. Kinwat, Dist. Nanded Through its Head Master .. Petitioners (Orig. Resp. no.1 and 2) (2) WP. 7782.2009+1 VERSUS 1. Shri Govindrao S/o Sheshrao Wakore Age : 31 years, Occu.: Nil, R/o Katkalamba, Tq. Kandhar District : Nanded 2. The Education Officer (Secondary) Zilla Parishad, Nanded 3. Shri Uttam S/o Kondiba Bhujbale Age : 29 years, Occu.: Service as Physical Education Teacher, R/o C/o Manik Secondary School Chikhali (Bk.), Tq. Kinwat District Nanded .. Respondents (Resp.No.2 and 3 are Orig. Resp. no.4 and 3) (IN W.P. NO. 7782 OF 2009) Mr. S.C. Bhosale, Advocate for the petitioner Mr. R.J. Godbole, Advocate for the respondent no.1 Mr. V.P. Golewar, Advocate for the respondent nos.2 and 3 Mr. S.V. Kurundkar, Addl. G.P. for the respondent-State (IN W.P. NO. 249 OF 2010) Mr. V.P. Golewar, Advocate for the Petitioners Mr. R.J. Godbole, Advocate for the respondent no.1 Mr. S.V. Kurundkar, Addl. G.P. for the respondent-State Mr. S.C. Bhosale, Advocate for the respondent no.3 ... CORAM : V.R. KINGAONKAR, J. DATE OF RESERVING THE JUDGMENT : 18TH AUGUST, 2010 DATE OF PRONOUNCING THE JUDGMENT : 3RD SEPTEMBER, 2010 JUDGMENT:- 1. Both the Petitions are being decided together inasmuch as they are filed against same (3) WP. 7782.2009+1 judgment and order rendered by the School Tribunal, Latur in Appeal bearing no. 74 of 2007. The appeal was preferred by the respondent no.1. By the impugned judgment and order, his Appeal came to be allowed and he was directed to be reinstated in service as Physical Education Teacher alongwith full backwages and consequential benefits. First Writ Petition (Writ Petition no. 7782 of 2009) is filed by petitioner Uttam Bhujbale who was appointed on the post allegedly vacated by the respondent no.1, as Physical Education Teacher and is likely to be removed as a result of the impugned judgment whereas second Writ Petition (Writ Petition no.249 of 2010) is filed by the educational institution and the school who are required to comply with the directions issued by the School Tribunal vide the impugned judgment. 2. The respondent no.1 had challenged the termination order dated 5.12.2007 whereby his services as Physical Education Teacher and Incharge Headmaster came to an end w.e.f. 5th January, 2008. (4) WP. 7782.2009+1 He was B.A. B.P.Ed. when he initially joined the service in Manik Secondary School, Chikhali (Bk.). His case before the School Tribunal was that he was duly appointed to work as Physical Education Teacher since 18.6.2001. He was assigned additional duty to work as Headmaster. The management of the educational institution did not, however, issue any appointment order to him. He attended the duty as Physical Education Teacher in the said school till second week of June, 2007. In the meanwhile, he was asked to complete B.Ed. course. He was granted leave to complete the said training course. He got completed the B.Ed. course and again resumed the duty as Physical Education Teacher. He was transferred vide letter dated 15.6.2007 to another un-aided school called Manik Madhyamik Vidyalaya, Totamba. Though the petitioner-Uttam Bhujbale was junior to him yet the management forwarded proposal for approval of his appointment as Physical Education Teacher in the aided school at Chikhali (Bk.) The proposal forwarded by the management was objected to by him. He ventilated his grievances regarding the (5) WP. 7782.2009+1 unfavourable treatment meted out to him by the management. The management vindictively terminated his services w.e.f. 5.1.2008. He alleged that he had served in the aided school of the educational institution for about five years as Physical Education Teacher and therefore acquired status of deemed permanency. He further asserted that the termination of his services is bad in law and liable to be set aside. 3. The petitioners resisted the appeal by filing separate written statements. They flatly denied that the respondent no.1 was duly appointed as Physical Education Teacher in the aided school run by the institution at Chikhali (Bk.). They denied that he was appointed by following regular procedure. They submitted that the respondent no.1 was in need of the service and was ready to work as honorary teacher. They submitted that the school was un-aided school at the material time and, therefore, there was dearth of employees willing to work in the school. It was for such a reason that the respondent no.1 was appointed (6) WP. 7782.2009+1 as honorary teacher w.e.f. June, 2003. They contended that the respondent no.1 prepared fabricated and bogus documents regarding the grant of leave and his appointment. He was never granted permission and was never relieved by the institution in order to join the B.Ed. course. No leave was granted to him for such purpose. They denied that the respondent no.1 was allowed to resume the duty as Physical Education Teacher after completion of the B.Ed. course. They submitted that the respondent no.1 attended the B.Ed. course as a private student and not a nominee of the educational institution. According to them, the respondent no.1-Govindrao Wakore tendered resignation letter dated 1.6.2007 and thereafter never remained in the service. They contended that the respondent no.1 manipulated fabricated documents in order to put forth a false claim of his resuming duty again and the transfer to un-aided school at village Totamba. Consequently, they sought dismissal of the appeal. 4. The School Tribunal considered the record (7) WP. 7782.2009+1 produced by the parties, heard them in support of their rival contentions and ultimately reached a conclusion that the respondent no.1 was lawfully appointed as Physical Education Teacher in the school of the educational institution. The School Tribunal further held that he was illegally terminated by the management. The School Tribunal held that he had acquired status of permanency due to continuous service as contemplated under section 5(2) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (For short, "The M.E.P.S. Act"). In keeping with such findings, the School Tribunal allowed the Appeal and directed reinstatement of the respondent no.1-Govindrao Wakore with full backwages and other incidental benefits like continuity in service etc. 5. Heard learned counsel for the parties and learned Additional Government Pleader. Counsel for the petitioners would submit that the appointment of the respondent no.1 is not proved to be lawful. They would submit that the respondent no.1 was not (8) WP. 7782.2009+1 eligible for appointment as Incharge Headmaster. They would further submit that the respondent no.1 prepared fabricated documents regarding his attendance in the school and the relieving letter for attending the B.Ed. course. It is argued that petitioner-Uttam Bhujbale was appointed in the vacant post and, therefore, proposal was forwarded to the Education Officer for approval of his services. It is contended that the respondent no.1 got prepared a false letter dated 15.6.2007 regarding his transfer order to the un-aided school at Totamba. They contended that the termination letter is also fabricated by the respondent no.1 though he was not in service after the resignation letter dated 1.6.2007. It is urged, therefore, that the impugned judgment is required to be set aside. Per contra, counsel for the respondent no.1 supported the impugned judgment. 6. Before I proceed to consider the rival contentions, let it be noted that in the exercise of writ jurisdiction, this Court will not normally (9) WP. 7782.2009+1 interfere with the fact finding process which was undertaken by the Tribunal. The scope of Article 227 of the Constitution of India is rather restricted. So, unless there is perversity committed by the Tribunal or that the findings are based on no material at all, it is difficult to interfere with the findings of facts. In the exercise of writ jurisdiction, this Court is required to supervise and oversee whether the Tribunal acted like a prudent adjudicator or rendered such findings which have no foundation or are not backed up by the settled principles of law. 7. Coming to the fact situation obtained in the present case, it may be gathered from written argument (Exh. "R-3") submitted by the petitioners before the School Tribunal that they denied status of the respondent no.1 as Physical Education Teacher. It was alleged that he had never served in the school, nor was appointed as Physical Education Teacher. The written statement filed by the management of the school (Exh."R-4") would further (10) WP. 7782.2009+1 indicate that he was appointed as honorary Teacher w.e.f. June, 2003 for the reason that at the relevant time it was un-aided school and no other person was willing to work in that school. Needless to say, there is inherent inconsistency between the written argument and the written statement of the management. It has come on the record that the school at village Chikhali (Bk.) started functioning in 2001. It has also come on record that the staff members were appointed to work in that school in 2001. It is not the case of the school management that from the year 2001 till June, 2003 nobody was appointed to work as Physical Education Teacher or that someone was appointed earlier and had left the school which necessitated the appointment of the respondent no.1 as stop-gap arrangement. 8. The respondent no.1 produced extract of Pravesh Nirgam Register vide Exhibit 4/2 before the School Tribunal. There was no counter evidence to show that entries in the Pravesh Nirgam Register have been concocted. All such entries in that register (11) WP. 7782.2009+1 are counter-signed by the Headmaster. The entries are also verified by the competent Officer of the Education Department, Panchayat Samiti, Kinwat and the B.D.O. of the Panchayat Samiti. Inspite of the demand of original Pravesh Nirgam Register, the management of the school failed to produce the original record. It is obvious that the extracts filed by the respondent no.1 could be accepted in view of the failure of management to produce the original record. The relevant entries in the Pravesh Nirgam Register would go to show that the respondent no.1 had worked in the school of the educational institution w.e.f. 18th June, 2001 as Physical Education Teacher and Incharge Headmaster uptil 28.8.2006. So also, entries in the muster roll for the relevant years would go to show that he had worked as Incharge Headmaster. As against this, there is no piece of evidence to show that he was appointed as honorary school Teacher. What was the honorarium paid to him and what were the terms of the so called honorary services are the aspects which have not been clarified by the management. (12) WP. 7782.2009+1 9. At this juncture, it may be noticed that the respondent no.1-Govindrao Wakore executed one long term lease deed in favour of the management of the school. It is a registered document. It appears from the copy of the lease deed (Exh."R-6") to the second Petition (Writ Petition no. 249 of 2010) that on 25.8.2003 he gave 1 H 1 R land owned by him to Manik Vidyalaya, Chikhali (Bk.) for period of 29 years on rent of Rs.20/- per month. It appears therefore that he gave such big chunk of land to the educational institution on nominal rent in lieu of his appointment as School Teacher. The documentary evidence gives serious jolt to the total denial offered by the school management in respect of the status of the respondent no.1-Govindrao Wakore as Physical Education Teacher. 10. It emerges from the record that the school management assured the respondent no.1 to take back him in service after his completion of the B.Ed. course. Though he was not nominated for the training (13) WP. 7782.2009+1 course as in-service candidate yet either on his own he wanted to complete the training course or the school required him to obtain such qualification. It appears that mother of the respondent no.1 was Vice President of the school during the relevant period and, therefore, certain concession was given to the respondent no.1. The concession was lateron withdrawn when the members of the management were subsequently changed and she was ousted from the Office. The petitioners alleged that the respondent no.1-Govindrao Wakore tendered resignation on 1st July, 2006 with immediate effect. It is further alleged that the resignation was accepted during the meeting of the management which was held on 10.7.2006. He thereafter attended B.Ed. course as a private student for the year 2006-2007. Copy of the resignation letter relied upon by the educational institution purports to show that the respondent no.1 was continuously working as Physical Education Teacher and owing to domestic difficulties he voluntarily resigned from the post on 1.7.2006. There is absolutely no evidence coming forth to show (14) WP. 7782.2009+1 that he was really suffering from domestic difficulties. 11. In the context of resignation, voluntariness thereof is required to be ascertained independently. The resignation letter is required to be forwarded to the management in accordance with section 7 of the M.E.P.S. Act. It is true that where the resignation is not forwarded by the registered post, it need not be invalid in every case. Still, however, where an employee seeks to contend that his resignation was not voluntary, the Tribunal is required to decide that question on the basis of attending circumstances and the evidence placed on record. Here is a case in which the petitioners allege that due to the resignation dated 1.7.2006 the respondent no.1- Govindrao Wakore was not in service thereafter. The record, particularly, extract of Pravesh Nirgam Register however shows that he continued to work even after the so-called resignation letter. Section 7 of the M.E.P.S. Act reads as follows:- (15) WP. 7782.2009+1 "7. Procedure for resignation by employees of private schools: If any employee intends to resign his post in any private school, at any time after the appointed date, he shall draw up a letter of resignation in duplicate and sign both the copies of that letter and put the date thereon. He may then forward one copy to the Management by registered post and keep the other copy with him." Perusal of section 7 would show that the resignation is required to be forwarded and due compliance of rule 40 of the M.E.P.S. Rules, 1981 is also contemplated. The respondent no.1 had acquired status as permanent employee in view of continuous service for more than two years. Rule 40(1) of the M.E.P.S. Rules, 1981 reads as follows:- "40. Resignation (1) A permanent employee may leave service after giving three months notice and a non-permanent employee may leave service after giving one calender month's notice. The Management may, however, allow an employee to leave service earlier on payment of pay (excluding allowances) for three months, or as the case may be, one month in lieu of notice by the (16) WP. 7782.2009+1 employee. The amount in lieu of notice shall be restricted to the pay or the period by which the notice period falls short." On comprehensive consideration of Rule 40 of the M.E.P.S. Rules and section 7 of the M.E.P.S. Act, it is difficult to countenance the story of the school management regarding voluntary resignation of the respondent no.1-Govindrao Wakore. Faced with this difficulty, counsel for the petitioners argued that the respondent no.1 prepared fabricated and false documents in order to show continuity of his service though he attended the B.Ed. training course for the year 2006-2007 as a private candidate. It cannot be ignored that the respondent no.1 had temporarily left the employment in order to join the B.Ed. course. He did his B.Ed. course privately for couple of years. What appears from the record is that he too is not free from blame of preparing certain false record regarding grant of leave to attend the B.Ed. course. It appears that he was required to complete his B.Ed. course between 2006-2008. In the meanwhile, he managed to remain absent without grant of any leave (17) WP. 7782.2009+1 with a hope that his mother's domination in the management was likely to give him permission to resume the duty. That had partly worked to the extent of allowing him to join the duty. 12. The petitioners' contention is that there was no regular appointment of the respondent no.1 and as such his termination could not be regarded as invalid. It was argued that he was not terminated by the management of the school but had abandoned the service on account of the resignation letter dated 1.7.2006. 13. Mr. V.P. Golewar learned counsel appearing for the petitioners relied on "Mohd. Ashif and others Vs. State of Bihar and others (2010) 5 S.C.C. 475". The Apex Court held that where there was no cadre of Voluntary Health Workers who were working on honorarium in State run dispensaries such workers could not be regularised or absorbed. The fact situation in the given case is altogether different from that of the present case. In "Nita Ramesh (18) WP. 7782.2009+1 Danane Vs. Dombivali Mitra Mandal and others 2009(1) Mh.L.J. 796" this Court held that there is no requirement for advertisement where the post is in open category. It is held that only an application with required details could be made by a candidate for the purpose of appointment. In the present case, the respondent no.1 did not produce any advertisement and, therefore, it was argued that his appointment was not legal and proper. The observations in case of "Nita Ramesh Danane" (supra) would meet such an argument. 14. In "Hindi Vidya Bhavan, Mumbai and others Vs. Presiding Officer, School Tribunal, Mumbai and others 2007(6) Mh.L.J. 563" it is held that for want of approval to the appointment of the members of the staff, the appointment cannot be rendered as invalid. It is further held that remedy of appeal can be invoked by the employees of the school notwithstanding the fact that their appointments were not approved by the Education Department. So also in "St. Ulai High School and anr. Vs. Devendraprasad (19) WP. 7782.2009+1 Jagannath Singh and anr. 2007 MEC 300" full Bench of this Court held that the approval by the Education Officer is not a condition precedent for employment of staff members in the private school and, therefore, appeal at behest of employee, whose appointment has not been approved, would be maintainable. 15. Considering the settled legal position, it is difficult to countenance the argument that the respondent no.1-Govindrao Wakore was not duly appointed as Physical Education Teacher and that his appeal could not be entertained by the School Tribunal. The School Tribunal seems to have discarded the defence versions on valid basis. 16. It need not be reiterated that the respondent no.1-Govindrao Wakore was absent from duty for two academic years between 2006-2008. He had joined the B.Ed. course as a private trainee. It is manifestly clear, therefore, that behind his back petitioner-Uttam Bhujbale was appointed as Physical (20) WP. 7782.2009+1 Education Teacher. What appears from the record is that after the respondent no.1-Govindrao Wakore resumed the duty, he was transferred to non-aided school. It was due to such a reason that he was aggrieved because his employment was in jeopardy. He therefore made representation to the Education Officer and lateron preferred Appeal before the School Tribunal. Under these circumstances, the School Tribunal ought not to have granted full backwages to him. The direction no.5 in the final order in the impugned judgment is, therefore, improper and illegal. Needless to say the impugned judgment and order requires modification to the extent of the said part thereof. 17. In the result, the Petitions are partly allowed only to the extent of the direction no.5 issued in the final order of the impugned judgment pertaining to payment of full backwages to the respondent no.1-Govindrao Wakore and withholding of the non-salary grant of the school. The said direction stands deleted from the final order. The (21) WP. 7782.2009+1 remaining part of the impugned judgment and order is confirmed and the Petitions be deemed as dismissed to that extent. The parties shall bear their own costs in the context of both the Petitions. Rule partly made absolute accordingly. Sd/- [V.R. KINGAONKAR, J.] arp