( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 386 OF 2002 Sunil Premchand Narkhede, Assistant Teacher, working in the School run by the Municipal Council, Jalgaon, Taluka and District Jalgaon. PETITIONER VERSUS 1. The Jalgaon Municipal Council, Jalgaon, through its Chief Officer. 2. The President, Jalgaon Municipal Council, Jalgaon. 3. The Chairman, Standing Committee, Municipal Council, Jalgaon. 4. The Collector, Jalgaon. 5. The State of Maharashtra RESPONDENTS WITH WRIT PETITION NO. 708 OF 2002 Rajani Janardhan Yewale, R/o Plot No. 51, Ganesh Wadi, Jalgaon. PETITIONER VERSUS 1. Jalgaon Municipal Council, through its Chief Officer, Jalgaon. 2. Jalgaon Municipal Council, through its President, Jalgaon. 3. Jalgaon Municipal Council, ( 2 ) through its Chairman, Standing Committee, Jalgaon. 4. The District Collector, Jalgaon. 5. The State of Maharashtra RESPONDENTS AND WRIT PETITION NO. 422 OF 2002 Smt. Vandana Chintaman Chaudhari, R/o Dhondki Vihir, c/o Umesh Pandharinath Chaudhari, Asoda, District Jalgaon. PETITIONER VERSUS 1. The Jalgaon Municipal Council, Jalgaon, through its Chief Officer, Baliram Peth, Jalgaon. 2. The President, The Jalgaon Municipal Council, Baliram Peth, Jalgaon. 3. The Chairman, Standing Committee, The Jalgaon Municipal Council, Baliram Peth, Jalgaon. 4. The District Collector, Collector Office, Jalgaon. 5. The State of Maharashtra. RESPONDENTS ..... Mr. S.R. Barlinge, advocate for the petitioner in writ petition No. 386/2002. Mr. L.V. Sangit, advocate for the petitioners in Writ Petitions No. 708/2002 and 422/2008. Mr. P.R. Patil, advocate for respondents No. 1 to 3 in all three writ petitions. Mr. K.M. Suryawanshi, AGP for respondents No. 4 and 5 in all three writ petitions. ..... ( 3 ) [CORAM : V.R. KINGAONKAR, J.] [DATE OF JUDGEMENT RESERVED : 17th June, 2009] [DATE OF JUDGEMENT PRONOUNCED : 24th June, 2009] JUDGEMENT : 1. The group of these three (3) petitions is being disposed of by this common judgement in as much as there is similarity of controversial questions involved in the same. 2. The petitioners were appointed as school teachers in the schools run by the Jalgaon Municipal Council (respondent No.1). They are duly qualified and were appointed to the post of “Assistant Teacher”. There is no dispute about the fact that the respondent No. 1 – Municipal Council published an advertisement for appointment of the school teachers. By resolution dated 22-12-1997, it was decided to appoint the petitioners. The appointment letters were issued accordingly. The initial appointment was for one (1) year for period ( 4 ) between 26-12-1997 and 25-12-1998, or for period till availability of a candidate selected by the Staff Selection Board. The appointment was, however, continued. An inquiry was contemplated lateron by the Collector as the appointments were dehors the recruitment rules and procedure. The President of the Municipal Council issued order dated 11-01-2000 and terminated services of the petitioners. Lateron, the Collector, by his order dated 31-01-2000, suspended the resolution whereby services of the petitioners were continued by the Municipal Council for the academic year 1999-2000. The petitioners challenged the order of the Collector by filing an appeal (appeal No. 1, appeal No. 2 and appeal No. 3 of 2000) before the Additional Commissioner, Nasik Division, Nasik. The latter authority held that the appeals were not maintainable because the order of termination could not be regarded as penal. The revision applications preferred by them were rejected by the State Government. Hence, these petitions. 3. Heard learned counsel for the parties. ( 5 ) 4. The important questions involved in these petitions are : (i) Whether the appointment of the petitioners on post of “Assistant Teacher” was illegal and void ab initio ? (ii) Whether the petitioners could claim deemed permanency due to continuation of the appointment for more than two (2) years i.e. on account of completion of the probation period, and due to the approval to their appointments by the Education Officer ? (iii) Whether termination of the services of the petitioners can be regarded as penal and illegal ? 5. Mr. Barlinge and Mr. Sangit would submit that the petitioners could not have been shunted out from the service without giving them opportunity of hearing. The learned counsel would submit that the termination orders are against principles of natural justice. The learned counsel would further submit that the petitioners had completed more than two (2) years of service at the ( 6 ) relevant time and their appointments were approved by the Standing Committee of the Municipal Council from time to time and as such, they acquired right of permanency. It is pointed out that there was no grievance about any deficiency in the services rendered by the petitioners. They contended that the suspension of the municipal resolution under section 308 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (for short, “the MMC Act”) could not be done by the Collector when there was no element of “public interest” involved. The learned counsel would submit that the petitioners are entitled to seek continuation of the service in as much as due to interim relief granted by this Court, they are still in service. It is argued that after a period of about ten (10) years, the petitioners may not be thrown out of service without there being any fault on their part. Mr. Patil P.R., however, supports the orders of termination and the order of the Collector and the other authorities. He would submit that the initial appointment of the petitioners was void because the required recruitment procedure was not adopted at all ( 7 ) and the President of the Municipal Council hastily appointed them. He would submit that the President has no authority to appoint the teachers qua the municipal schools. He would further submit that the present cases involve question of appointment dehors the rules and, therefore, it is not merely an irregularity as such, but is an illegality committed by the then President of the Municipal Council. He contended that such back-door entry in the public employment is impermissible and, therefore, the petitioners cannot claim any right to continue on the post. 6. Before I proceed to consider the legal aspects of the matter, it would be appropriate to notice that the advertisement issued by the Municipal Council (Exh-A) for filling up three (3) posts of Assistant Teacher would make it manifestly clear that all the three (3) posts were for reserved category i.e. Scheduled Caste (S.C.), Scheduled Tribe (S.T.) and Nomadic Tribe (N.T.) The resolution No. 329 dated 22-12-1997 reveals that the selection was done by the Chairman of Education Committee and the President of the Municipal Council. The ( 8 ) resolution further reveals that the selection itself was not in accordance with the rules nor the list of candidates was called from the Employment Exchange and there was backlog of the S.Cs. And S.Ts. It is further clear, on perusal of the said resolution, that the expenditure was required to be spent from the municipal funds. The Committee decided, however, that there was urgent need to appoint the school teachers due to increase in the number of classes in the three (3) municipal middle schools. It was due to such emergent need that the Committee resolved to appoint the petitioners for a period of two (2) years. The first appointment letter dated 26-12-1997 issued, vide OW No.- Estb./6835/1997-1998, however, clearly indicated that the petitioners were appointed for specified period between 26-12-1997 and 25-12-1998 or until candidates selected by the Staff Selection Board were available, whichever is earlier and that it was purely temporary appointment without any right of the petitioners to claim the post. The first appointment letter dated 16-12-1997 further reveals that if the Staff Selection Board would advertise the posts, the petitioners may directly apply to such ( 9 ) Board. 7. It is significant to note that as per the first appointment letter dated 26-12-1997, the services of the petitioners came to an end on 25-12-1998. The petitioners were not selected by the Staff Selection Board nor the Education Committee of the Municipal Council adopted any further resolution to continue their appointments. The subsequent appointment was made afresh by the President of the Municipal Council vide letter dated 26-02-1999 with retrospective effect from 26-12-1998 onwards. The letter dated 26-02-1999,issued by the President of the Municipal Council, purports to show that the appointment of the petitioners was temporarily made for period uptill 31st March, 1999. The conditions of services were in accordance with the Secondary Schools Code. The third letter dated 22-05-1999 was also issued by the President of the Municipal Council whereby the petitioners were continued in service for the year 1999-2000. He sanctioned their continuation. The President further directed that the Education Officer may be informed to grant approval for such continuation. The President ( 10 ) himself issued the appointment letters dated 09-07-1999 in pursuance to the order issued by him. Needless to say, the Education Committee of the Municipal Council did not approve any continuation of the petitioners after 25-12-1998. It was only the President who thereafter, by his letter dated 26-02-1999, made afresh appointment of the petitioners with retrospective effect from 26-12-1998 and subsequently also, continued the same for the year 1999-2000. 8. There is no dispute that the petitioners were selected amongst eleven (11) candidates who had appeared for interview before the Education Committee of the Municipal Council. There is also no dispute about the fact that they are qualified to work as Assistant Teachers. The post of Assistant Teacher is classified as Class-III category post. The affidavit filed by the Chief Officer of the Municipal Council – Dhananjay Dattatraya Jawlikar, reveals that the municipal resolution No. 329 dated 22-12-1997 itself was not in accordance with the law, rules and regulations and, therefore, the then Chief Officer had directed that the resolution should be ( 11 ) reconsidered by the Standing Committee for preparing a new list of candidates as per the rules. This submission of the Chief Officer was, however, brushed aside and the office order dated 26-12-1997 was issued as per the directions of the Standing Committee. 9. The selection of staff members was required to be undertaken as provided under the provisions of the Maharashtra Public Services (Subordinate) Selection Boards Act, 1973. Schedules (I) and (II) appended to the said Act would clearly show that the selection of Assistant Teachers ought to have been made by the Regional Selection Board, Nasik. The Selection Board was constituted in view of section 2 (5) of the said Act. It need not be reiterated that the petitioners were initially appointed only upto 25-12-1998 or uptill availability of selected candidates through regular recruitment made by the Regional Staff Selection Board, whichever was earlier. It goes without saying that the petitioners were appointed only on adhoc basis without following the recruitment rules. Their appointments were for a fixed tenure. Thus, their initial appointments ( 12 ) could be regarded as “fortuitous” appointments and as such, they had no vested right to claim the posts. Provisions of the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 would make it quite clear that for the purpose of regular employment, list of candidates from the Employment Exchange ought to have been called. It is beyond pale of controversy, therefore, that the initial appointment of the petitioners was without following the recruitment rules. 10. Mr. Barlinge would submit that the questions involved in these petitions are as to whether the President could have issued the termination order when he is not the disciplinary authority and whether the Collector could suspend the resolution of the Standing Committee to appoint the petitioners within the meaning of section 308 (1) of the MMC Act. He would submit that when there were vacancies available, then the backlog could be carried forward. He points out that without any resolution by the Municipal Council, the President passed the termination order for reasons which are strange. The termination order dated 11-01-2000 would show that the ( 13 ) Collector had commenced inquiry regarding appointment of the petitioners and since the appointments were not in accordance with the regular recruitment procedure, the services were terminated w.e.f. 11-01-2000. Thus, in contemplation of adverse action by the Collector, the President himself terminated services of the petitioners. So, Mr. Barlinge would submit that the President committed illegality and such termination is void. He referred to “College of Engineering of Yeshwant Rural Education Society, Sewagram, Dist. Wardha, through Chairman and another v. Mrs. Asmita Basole and another” (1987 Mh.L.J. 676). A Division Bench of this Court held that where probationer was sought to be terminated on ground of being negligent in duties, then show-cause notice and inquiry was mandatory. It has been held that order of termination by Chairman of Governing Body could not have been passed and the subsequent resolution by the local Managing Committee was ineffective so as to validate the termination order. It is argued on behalf of the petitioners that the President could not have terminated the services of the petitioners ( 14 ) and that subsequent cancellation of the resolution by the Collector would not ratify such termination. 11. Reliance is also placed on certain observations in “Panditrao Daji Kulkarni v. State of Maharashtra and others” (1978 Mh.L.J. 703). A Division Bench of this Court observed that the Collector cannot interfere, under section 308, with the nomination of member by the President under section 63 (3B) (i) of the MMC Act. It is further observed that the President acting under section 63 (3B) (i) is not the Municipal Council within the meaning of section 308. In find it difficult to countenance the submissions put forth on behalf of the petitioners. The above authority is inapplicable, with due respects, to the fact situation of the present case. The President’s powers under section 63 was the subject which fell for consideration of the Division Bench. So also, the question of termination of a probationer in other services under the Nagpur University Services and Conditions of Employment Ordinance cannot be regarded as similar in nature to the termination in the present case. ( 15 ) Here is a case in which the petitioners were appointed by the President without any authority. Their appointment itself was illegal after initial period was over on 26-12-1998. The recruitment itself was dehors the rules at the inception. The appointment being void ab initio, the subsequent termination by the President itself was not required to be as per the procedure. The back-door entry of the petitioners, without selection by the Regional Selection Board, and without following due recruitment rules could not be sustained in as much as the initial appointment was on adhoc basis, subject to condition that they would be terminated immediately on availability of duly selected candidates or as on 25-12-1998, which ever was earlier. 12. In “Uttam and others v. Municipal Council, Darwha and others” (1972 Mh.L.J. 874), a Division Bench of this Court held : “So that, all the willing, eligible candidates will be in a position to apply for the post, it is necessary that the intention of the ( 16 ) Municipal Council to make appointments to the public posts should be made known to the public. These appointments cannot be treated to be a private affair of the Municipal Council and these offices cannot be allowed to be filled in without making them known to the public and thereby depriving all the eligible persons from applying and being considered for the post itself....” In the case of “Uttam and others” (supra), the petitioners were trained teachers and had applied for the post. They had been called for interview, but were told to go back on the ground that trained teachers were not required. Thereafter, the Municipality appointed the respondents who were untrained teachers. It was held that such appointments were violative of Article 16. The core issue involved in the present petitions is altogether different. The appointments of school teachers could have been previously made by the Municipal Council by issuing due publication and calling applications. However, after the enactment of the Maharashtra Public Services (Subordinate) Selection Boards Act, 1973, the recruitment process could be ( 17 ) conducted only by the Regional Selection Board. 13. In “M.P. State Agro Industries Development Corpn. Ltd. and another v. S.C. Pandey” (2006) 2 S.C.C. 716, the Apex Court held that if an appointment is made contrary to provisions of the Statute, the same would be void and effect thereof would be that no legal right could be derived by the employee by reason of such appointment. The relevant observations may be usefully quoted as follows : “The question raised in this appeal is now covered by a decision of this Court in M.P. Housing Board v. Manoj Shrivastva wherein this Court clearly opined that : (1) when the conditions of service are governed by two statutes; one relating to selection and appointment and the other relating to the terms and conditions of service, an endeavour should be made to give effect to both of the statutes; (2) a daily-wager does not hold a post as he is not appointed in terms of the provisions of the Act and the Rules framed thereunder and in that view of the matter he does not derive any legal right; (3) only because an employee had been ( 18 ) working for more than 240 days that by itself would not confer any legal right upon him to be regularised in service; (4) if an appointment has been made contrary to the provisions of the statute the same would be void and the effect thereof would be that no legal right was derived by the employee by reason thereof.” 14. In “Secretary, State of Karnataka and others v. Umadevi (3) and others” (2006) 4 S.C.C. 1, the Apex Court held that adherence to the rule of equality in public employment is a basic feature of our Constitution. It is observed : “It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules....” “Merely because an employee had continued under ( 19 ) cover of an order of the Court, which we have described as “litigious employment” in the earlier part of the judgement, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required.....” “.....The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not (sic) one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution.” ( 20 ) 15. In so far as question of powers of the Collector is concerned, a Division Bench of this Court in “Syed Kasim Syed Rustam v. Additional Commissioner, Amravati Division, Amravati and others” 2005 (1) Mh.L.J. 246, held that where the appointment of Assistant Teacher in Primary School vide resolution passed by the Municipal Council was without prior approval or sanction accorded by the Regional Director, the Collector was competent to suspend such resolution under section 308 (1) of the MMC Act. There is no substance in the argument, therefore, that the Collector was not authorized to suspend the resolution of the Municipal Council regarding the appointment of the petitioners when on the face of it, such appointments were made blatantly without following the regular mode of recruitment. In any case, even assuming that the initial appointment was valid, then also, the ex post facto approval to the permanent appointment/continuation of the petitioners w.e.f. 26-12-1998 by the President of the Municipal Council alone was in flagrant violation of the recruitment rules. His solo act of making such appointments was without ( 21 ) authority and in excess of his powers. Obviously, his further act of termination cannot be isolated from the earlier illegality committed by him and must be held legal one as he himself had made the appointments. 16. Full Bench of this Court, in “Sanjay Govind Sapkal and others v. Collector of Dhule and others” 2004 (2) Mh.L.J. 874, held that where the Collector acted under section 308 (1) of the MMC Act and suspended action taken by the Municipal Council, it cannot be said that the action was not without authority of law. Only because plea was raised regarding absence of opportunity to the employees affected by such decisions. In the present case, the order rendered by the Collector shows that hearing was given to all concerned persons and principles of natural justice were followed. The petitioners preferred Municipal Appeals No. 1 to 3 of 2001 which were dismissed by the Additional Commissioner, Nasik. The decision was further approved by the Government. I am of the opinion that the appointment of the petitioners could not be regarded as valid one. The ( 22 ) provisions of section 76 of the MMC Act have not been followed nor the President had authority to appoint the petitioners w.e.f. 26-12-1998. It does not stand to reason, therefore, that they were entitled to claim continuity in the service because the termination order was issued not by the Chief Officer of the Municipal Council, but by the President. They are also not entitled to claim continuation in the service because their services were protected under interim orders rendered in the present petitions at the time of granting Rule. In my opinion, it would be appropriate to grant compensation of rupees one (1) lac to each of the petitioner which shall be payable by the Municipal Council, as ex-gratia payment, in as much as their appointments were illegally made by the respondent No. 2, which unauthorised act was not immediately objected to by the respondents No. 1 and 3. 17. For the reasons aforestated, I have no hesitation in holding that the termination of the services of the petitioners is legal, proper and correct. No interference is warranted. ( 23 ) 18. In the result, all the three (3) petitions are dismissed. The respondents No. 1, 2 and 3 are directed to pay compensation of rupees one (1) lac to each of the petitioner by way of ex-gratia payment, within period of six (6) weeks. The interim relief granted in these petitions stands vacated. 19. In view of dismissal of writ petitions, civil application No. 3737/2004 (in writ petition No. 386/2002), civil application No. 2966/2004 (in writ petition No. 708/2002) and civil application No. 4034/2004 (in writ petition No. 422/2002) do not survive and hence, stand dismissed accordingly. [ V.R. KINGAONKAR ] JUDGE NPJ/WP386-02-708-02-422-02