1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.3841 of 1998 Jaysingpur Shikshan Prasarak Mandal, Jaysingpur and ors. Petitioners Vs. Mr.Balasaheb Yashwant Sapkal & ors. Respondents Mr.N.V.Bandiwadekar for petitioners. Mr.S.D.Dharmadhikari for resp.no.1. Mr.A.P.Vanarase, AGP for resp.no.2 CORAM: B.H.MARLAPALLE, J. February 21, 2008 ORAL JUDGMENT: 1. This petition arises from the judgment and order rendered by the School Tribunal on 30/4/1998 thereby allowing Appeal No.79 of 1997 filed by the respondent no.1 - teacher. The School Tribunal by the impugned order has held that the termination notice dated 29/3/1997 was illegal and ineffective and, therefore, it was set aside, the petitioner - management was directed to reinstate the appellant on the original post as being a permanent employee and to pay him backwages including pay and allowances from the date of termination till reinstatement in the prescribed scale. 2 2. While granting Rule as per the order dated 19/8/1998 this Court had turned down the petitioner’s prayer for interim relief and, therefore, the petitioners had filed Letters Patent Appeal No.291 of 1998 which was finally disposed by the Division Bench on 7/12/2001 with the following directions: "(i) The order dated 19.8.1998 passed by the learned Single Judge is modified by further directing that the order of reinstatement passed by the School Tribunal shall also remain stayed during the pendency of writ petition. (ii) The employee - respondent no. 1 is permitted to make an application before the learned Single Judge for fixation of date of hearing of the writ petition and we expect that if such application is made the learned Single Judge shall endeavour to dispose off the writ petition expeditiously." 3. The facts which are not seriously disputed between the parties are as under, 3 . The respondent no.1 for the first time came to be appointed as an Assistant Teacher on Clock Hour Basis from 1/8/1992 till the end of the academic year 1992-93 and for a work load of six hours per week. At that time he held the qualifications of M.A. only and he could not have been eligible to be appointed as an Assistant Teacher either in the secondary school or a higher secondary school / junior college. In the academic year 1993-94 the respondent no. 1 - appellant sought admission to the B.Ed. Degree Course at Kolhapur itself and, therefore, the petitioners continued his appointment on honorary basis with a workload of few hours in a week in the academic year 1993-94. After he obtained his degree of B.Ed. and became qualified for being appointed as an Assistant Teacher / Lecturer in the Junior College, he was appointed from 1/7/1994 on Clock Hour Basis for a workload of twelve periods and the said appointment was approved by the respondent no.2 for the academic year 1994-95. In the similar fashion he was appointed in the next academic year 1995-96 and was issued notice of termination dated 27/3/1996 which he accepted. For the academic year 1996-97 there was a vacancy of a full time teacher and, therefore, the appellant came to be appointed as such 4 from 12/6/1996 as a full time teacher but on temporary basis till 31/5/1997. When the petitioners submitted the proposal for approval to the respondent no.2 for the academic year 1996-97, the approval was granted only on Clock Hour Basis with effect from 12/6/1996 and for twelve periods in a week as per the order dated 29/8/1996. The said respondent no.2 after a period of about seven months issued another order dated 15/3/1997 that the approval was granted as a full time teacher but only upto the end of the academic year and with a clear rider that the appointee shall not be given continuation for the year 1997-98. Within about a month, this order was also modified by the respondent no.2 and he issued a fresh order on 17/4/1997 and stated that there was no likelihood of the problem of surplus teachers in the academic year 1997-98 and, therefore, a duly qualified trained teacher could be appointed in the said academic year. The petitioners issued the notice of termination dated 29/3/1997 as per the directives of the respondent no.2 (vide his letter dated 27/3/1997) and the said notice came to be challenged before the School Tribunal in Appeal No.79 of 1997. During the pendency of the appeal the vacant post was filled in and the candidature of the 5 appellant was not considered. 4. The appellant challenged the notice of termination on the grounds that he had worked continuously for more than three academic years, he possessed the requisite qualifications and in the academic year 1996-97 itself he ought to have been appointed on probation. The termination notice was in breach of the provisions of natural justice and in any case he had attained the status of a deemed permanent teacher within the meaning of Section 5(2) of the MEPS Act, 1977 ("the Act" for short). The petitioners filed Written Statement and opposed the appeal and contended that at no point of time the appellant was appointed on probation and in the academic years 1994-95 and 1995-96 he was appointed only on Clock Hour Basis and it was not an appointment against a regular vacancy. In any case for the first time in the academic year 1996-97, when there was a full time post available, the appellant was considered and appointed but the respondent no.2 by his order dated 29/8/1996 granted approval only on Clock Hour Basis (part time). As per the petitioners the respondent no.2 passed the subsequent orders dated 15/3/1997 and 17/4/1997 on account of the 6 political influence of the appellant in asmuchas he was one of the candidates for the Panchayat Samiti elections held in March 1997 representing a political party and thus he had sufficient clout in the State Government so as to influence the Government officers like the respondent no.2 and, therefore, the reviewed orders by themselves would not make the appellant a teacher appointed on probation on full time basis in the academic year 1996-97. 5. The School Tribunal in the impugned order held that the appellant had worked for five academic years, had attained the status of a permanent teacher, in view of Section 2(7) he ought to be treated to be in continuous service from 1992-93 onwards, his services were not terminated from 1992-93 till he was approved on part time basis in the year 1994-95 and the management acted with malice in issuing the impugned notice of termination on the ground that the appellant was one of the candidates for the elections held in March 1997. Having heard the learned counsel for the respective parties at length and having gone through the record and more particularly the record of appointment of the appellant, it is more than clear that the reasoning 7 set out by the School Tribunal in support of the impugned order is fallacious, perverse and grossly erroneous. 6. It was not even the case of the appellant that he was not being appointed on permanent basis or the impugned termination notice was issued because he contested the elections. The issue of contesting the elections was set out in the Written Statement filed by the petitioners only to support their case that the appellant had sufficient political clout to influence the respondent no.2 to review the approval orders from time to time in the academic year 1996-97 and nothing further. The Written Statement filed by the management was very clear and it never made out a case that the impugned termination notice was issued because the appellant contested the elections without seeking permission from the management. The School Tribunal also fell in error in not noticing that in the academic years 1992-93 and 1993-94 the appellant did not possess the requisite qualifications so as to appoint him as a trained graduate teacher in a secondary school or a higher secondary school. Admittedly the appellant acquired these qualifications for the first time in the year 1994-95 8 and his appointment in the same year as well as in the next year was on part time basis with twelve clock hours and it was approved by the respondent no.2 as such. Even in the academic year 1996-97 the management i.e. the petitioners failed to comply with the statutory requirements to fill in a full time post and it was necessary for the petitioners to release an advertisement, invite applications, hold interviews and then appoint a candidate selected by the selection committee. Obviously this was not done when the appellant was appointed in the said academic year with effect from 12/6/1996. Section 5(1) of the Act states that the management shall, as soon as possible, fill in, in the manner prescribed, every permanent vacancy in a private school by the appointment of a person duly qualified to fill such vacancy and as per sub-section (2) ever person appointed to fill a permanent vacancy shall be on probation for a period of two years and subject to the provisions of sub-sections (3) and (4), he shall, on completion of this probation period of two years, be deemed to have been confirmed. As per sub-section (5) of Section 5 the management may fill in every temporary vacancy by appointing a person duly qualified to fill such vacancy and the order of 9 appointment shall be drawn up in the form prescribed in that behalf and shall state the period of appointment of such person. In the instant case the appointment order dated 12/6/1996 issued in favour of the appellant specifically stated the period from 12/6/1996 to 31/5/1997. At no point of time the appellant was appointed on probation within the meaning of Section 5(2) of the Act. At this stage Mr.Dharmadhikari, the learned counsel for the appellant referred to the circular / communication addressed by the Directorate of Education, Government of Maharashtra on 6/8/1992 to all the Education Officers and submitted that the petitioners ought to have appointed the appellant on probation in the academic year 1996-97. As noted earlier, though the management proceeded on the presumption that it was a full time post in the said academic year, the respondent no.2 did not agree with the same and at the first instance issued the approval order dated 29/8/1996 on part time basis. Even otherwise when the appellant did not go through the regular selection process, he could have no vested right to claim that he was a regularly appointed teacher against a permanent vacancy. In the case of Hindustan Education Society and anr. Vs. Sk. 10 Kaleem Sk. Gulam Nabi and ors. [AIR 1997 SC 2126] [AIR 1997 SC 2126] [AIR 1997 SC 2126], Their Lordships observed as under: "5. ...As regards permanent appointments, they are regulated by sub-sections (1) and (2) of Section 5 of the Act according to which the management shall, as soon as possible, fill up, in the manner prescribed, every permanent vacancy in a private school by appointment of a person duly qualified to fill in such vacancy. Every person so appointed shall be put on probation for a period of two years subject to the provisions of sub-sections (4) and (5). He shall, on completion of the probation of period of two years, be confirmed. Under these circumstances, the appointment of the respondent cannot be considered to be a permanent appointment. ... 7. Mr.Dharmadhikari also referred to a decision of this Court in the case of Shikshan Prasarak Mandal, Wani vs. Presiding Officer, School Tribunal, Amravati & anr. [2005 (4) Mh.L.J. 485] [2005 (4) Mh.L.J. 485] [2005 (4) Mh.L.J. 485]. As noted earlier the appellant never went through the regular selection process, he was not appointed on probation 11 and there is every reason to believe that the first approval order passed by the respondent no.2 clearly indicated that it was a part time post and, therefore, there was no question of any teacher being appointed on probation against such a post. 8. In the premises, this petition succeeds and the same is hereby allowed. The impugned judgment and order of the School Tribunal is hereby quashed and set aside. 9. Rule is made absolute with no order as to costs. (B.H.MARL