bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 6155 OF 1997 PETITION NO. 6155 OF 1997 PETITION NO. 6155 OF 1997 Smt.Nita Ramesh Danane ... Petitioner v/s 1. Dombivali Mitra Mandal 2. Sheth K.B.Veera High School 3. The Education Officer (Secondary) Zilla Parishad, Thane. 4. The State of Maharashtra ... Respondents Ms.Anjali N. Helekar for the petitioner. Mr.S.M.Oak for respondent Nos.1 and 2. Mr.C.R.Sonawane, A.G.P. for Resp.Nos.3 and 4. CORAM: CORAM: CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: DATED: DATED: 12TH SEPTEMBER, 2008 12TH SEPTEMBER, 2008 12TH SEPTEMBER, 2008 ORAL ORAL ORAL JUDGMENT JUDGMENT JUDGMENT: 1. The petition challenges two orders passed by the School Tribunal in Appeal Nos. 162 of 1997 and 164 of 1997. The only thing that can be deciphered from these two orders is that the appeals filed by the petitioner have been dismissed. The order of the School Tribunal distorts the facts and is bereft of any reasons. 2. The petitioner was appointed as a Librarian by the respondent by an order dated 22.9.1993. This order 2 mentions that she had been appointed as a full time Librarian consequent upon her application made to the respondents. The appointment was to take effect from 6.10.1993. Clause 2 of this appointment order clearly mentions that her appointment was on probation for a period of two years. The appointment order has been issued by the Head Master of the school. Clause 3 of the appointment order mentions that the terms and conditions of service were governed by the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and Rules made thereunder. The petitioner has contended that she was directed to sign an agreement which was executed on a stamp paper worth Rs.10/- on 20.9.1994. By this agreement, the petitioner had agreed that she was appointed against a reserved post. On 24.3.1995, a letter was issued to her by respondent No.2 informing her that her appointment was approved only from 13.6.1994 as a Full Time Librarian in the school upto the end of academic year 1994-95 and would come to an end on 30.4.1995.. On 1.8.1995 another letter was issued to the workman informing her that respondent Nos.1 and 2 had received candidates from the Backward Classes for being appointed as Librarian and, therefore, the petitioner’s services would be terminated on 1.9.1995. The petitioner then preferred an appeal before the School Tribunal, Nashik. That appeal was 3 transferred to the School Tribunal, Navi Mumbai and numbered afresh as Appeal No.164 of 1995. 3. While the appeal was pending, a letter dated 21.10.1995 was issued by the respondent No.1 informing her that the management had reconsidered its decision to terminate her services and that, therefore, they were reinstating her. A resolution to that effect had been passed by the management of the school. The petitioner, by her letter dated 6.11.1995 informed respondent Nos.1 and 2 that she was reporting for duty with immediate effect, pursuant to the letter of the management dated 21.10.1995 which had been received by her on 26.10.1995. On 8.11.1995, the petitioner informed the management that she would withdraw the appeal filed before the School Tribunal. By another letter of the same date, she requested the respondent Nos.1 and 2 to sanction her leave from 9.11.1995 to 19.11.1995 due to her impending delivery. Thereafter on 23.11.1995 the petitioner requested the respondent Nos.1 and 2 to grant her maternity leave from 20.11.1995 on which date she had delivered a child. She sought maternity leave of three months as available under the M.E.P.S. Rules. There is no dispute that such leave was granted to the petitioner. 4 4. On 19.2.1996, respondent Nos.1 and 2 acknowledged that the petitioner had resumed her duty after being on maternity leave. However, they called upon her to explain as to why she had not withdrawn the appeal pending before the School Tribunal. By her letter dated 2.3.1996, the petitioner called upon the respondents to permit her to sign the muster roll which she had been prevented from signing from 23.2.1996. The petitioner informed respondent Nos.1 and 2 that she would withdraw the appeal on 2.4.1996. As the petitioner was not permitted to sign the muster roll after 23.2.1996, it led to her filing another appeal before the School Tribunal, Nashik which was subsequently transferred to Navi Mumbai and numbered afresh as Appeal No.162 of 1997. 5. A written statement was filed by respondent Nos.1 and 2 in Appeal No.162 of 1997 (the second appeal) contending that the petitioner’s services were not terminated and in fact she had left the service of her own accord w.e.f. 23.2.1996. Respondent Nos.1 and 2 admitted that the petitioner was appointed as a Librarian on 6.10.1993 by the order dated 22.9.1993. However, it has been contended that the appointment was against a reserved category post. Respondents have also contended that they were required to appoint the 5 petitioner on a clock hourly basis as the Education Officer has not approved of her appointment permanently. It is contended that the appointment of the petitioner on probation w.e.f. 31.6.1994 was approved. Thereafter it is contended that a list of backward class candidates was received from the Social Welfare Officer for the post of Librarian and it was for this reason that the respondents terminated the services of the petitioner w.e.f. 1.9.1995. Respondents have also admitted that the services of the petitioner had been terminated on in October, 1995 and that on a reconsideration of the situation, the management had reinstated her in service from 1.11.1995. It is also admitted that the petitioner had applied for maternity leave, which was granted and that she resumed duty w.e.f. 19.2.1996. It is also admitted that she attended the school on 19th, 20th and 22nd February, 1996, 21.2.1996 being a holiday. The respondents have also admitted that sick leave for the period from 9.11.1995 till 19.11.1995 had been granted to the petitioner. However, it is contended that the petitioner was not stopped from reporting for work nor was she prevented from carrying on her duties; instead, it was the petitioner who had remained absent from 23.2.1996. The respondents have then pleaded that "It appears that it was not possible for the appellant to continue her duty as the baby was very small." The 6 allegation in the written statement is that the petitioner had remained absent and had in fact voluntarily abandoned her services. 6. The School Tribunal has, for reasons which to say the least are puerile, dismissed both the appeals. In fact, while dismissing Appeal No.164 of 1997 uncalled for remarks have been made by the School Tribunal against the petitioner about her motive in filing the appeal to extract more money from the respondents by way of salary. The Tribunal had then directed the respondents to pay her salary in accordance with the rules from 1.9.1995 to 25.10.1995. Then, the Tribunal has very charitably, directed the respondents to give an amount of Rs.100/- as bonus in addition to the aforesaid amount if the respondents felt that the petitioner was a good worker. The amount was directed to be paid within 15 days of the order i.e. from 20.9.1997. Admittedly, this amount has not been paid to the petitioner so far. 7. The reasoning of the Tribunal in Appeal No.162 of 1997 is absurd and illogical. The Tribunal has paid no heed to the pleadings on record and has passed an order wherein observations have been made which are completely contrary to the record. Although the respondents had not contested the fact that the petitioner had applied 7 for maternity leave, the Tribunal by its strange logic has observed that the petitioner had not in fact applied for the maternity leave. The Tribunal has then held that the petitioner was a temporary employee and not a probationer since her services were terminated prior to completion of the probation period. The Tribunal has directed the respondents to pay 97 days’ salary to the petitioner within 15 days of the order together with costs of Rs.500/-. It was further directed that, if the payment was not made by the respondents within the period stipulated, the respondents would have to pay 2% interest to the petitioner till the date of her actual payment. Admittedly, this amount also has not been paid to the petitioner although the respondents have not challenged the order. 8. The learned counsel appearing for the petitioner submits that the respondents have made every attempt to harass the petitioner and to deprive her of her legal rights. She submits that the correspondence on record indicates that it was after the petitioner joined duty, consequent upon completion of her maternity leave that the services of the petitioner were terminated. She submits that the respondents have prevented the petitioner from signing the muster roll only because she was unable to withdraw Appeal No.164 of 1996 filed 8 before the School Tribunal. The learned counsel points out that the dates on which the petitioner was expected to withdraw the appeal fell during the period of her confinement and, therefore, she was unable to attend the Court to withdraw the appeal. On the next adjourned date, her advocate was not present and, therefore, she could not withdraw the appeal. The appeal was adjourned to 1.3.1996 before which the petitioner’s services were terminated. The learned counsel submits that the findings of the School Tribunal that the appointment of the petitioner was on a temporary basis is erroneous and contrary to the record available. She points out that the letter which is annexed to the petition and which admittedly has been issued to the petitioner, appoints her on probation for a period of two years from 6.10.1993. The learned counsel submits that the agreement dated 20.9.1994 which the petitioner signed under duress cannot supersede the fact that she has been appointed as a full time librarian w.e.f. 6.10.1993 on probation for a period of two years. The learned counsel points out that the letter of appointment does not mention that her appointment was not in a clear vacancy or that she was appointed to a temporary post. The learned counsel then submits that there is a evidence on record which indicates that the petitioner resumed service after her confinement. She was not 9 permitted to sign the muster roll after 23.2.1996 and thereby the respondents had terminated her services illegally and without following due procedure laid down under the M.E.P.S. Act. 9. The learned counsel for respondent Nos.1 and 2 submits that the Tribunal has committed no error in dismissing the appeals. He points out that the appointment of the petitioner was on a temporary basis and that the petitioner had agreed to such an appointment by signing an agreement on 20.9.1994. He submits that although the appointment letter issued to her on 22.9.1993 mentions that her appointment was on a probation for a period of two years, in fact, the appointment was against a reserved post and, therefore, it was a temporary appointment. He then submits that there is no contract which subsists for it to be enforced as the appointment itself came to an end after one year. When the appeal was filed, the contract of service was not in existence and, therefore, it cannot be enforced, submits the learned advocate. The next submission of the learned counsel is that the appointment has come to an end because of the letter issued to the petitioner on 24.3.1995 itself and, therefore, the question of granting any relief to her does not arise. He points out that the petitioner had 10 accepted the letter dated 24.3.1995 wherein it was mentioned that she has been re-appointed from 13.6.1994 and that her services would come to an end from 30.4.1995 if they were not approved by the Education Officer. The learned counsel submits that having accepted that the appointment was only for one academic year, the petitioner cannot now contend that she was appointed on a probation. He then submits that in any event the appointment itself is not valid and in accordance with Rule 9 of the M.E.P.S. Rules. He submits that the Division Bench of this Court in the case of Priyadarshini Education Trust & ors. v/s Ratis Priyadarshini Education Trust & ors. v/s Ratis Priyadarshini Education Trust & ors. v/s Ratis (Rafia) (Rafia) (Rafia) Bano d/o Abdul Rasheed & ors., reported in 2007 Bano d/o Abdul Rasheed & ors., reported in 2007 Bano d/o Abdul Rasheed & ors., reported in 2007 (6) (6) (6) Mh.L.J. 667, Mh.L.J. 667, Mh.L.J. 667, has held that in order to claim benefit of deemed permanency, a teacher must be duly selected, he must be appointed in a clear permanent vacancy and the appointment must not be for a fixed period. He further submits that, any appointment made under the M.E.P.S. Act and Rules framed thereunder, must be made in accordance with the Rules, more particularly, Rule 9. The learned counsel submits that no advertisement was issued while appointing the petitioner and, therefore, it cannot be held that her appointment was valid and consequently her appointment cannot be a deemed permanent appointment. 11 10. In my opinion, the submissions of the learned counsel for the respondents cannot be accepted for more than one reason. A plain reading of the letter dated 22.9.1993 indicates that the appointment is made on probation for a period of two years. The M.E.P.S. Rules required appointment order to be issued in a particular manner. Once such an appointment order is issued, the management cannot by means of a so-called agreement reduce the term of appointment or change the nature of the status of the employee. 11. Neither the M.E.P.S. Act nor the Rules framed thereunder contemplate any agreement between the management of the school and an employee in respect of the appointment and the status of the employee. Therefore, in my view, it would be held that the so-called agreement which has been purportedly signed by the parties on 20.9.1994 has no effect in law and cannot be discharged from service on the basis of such an agreement. Besides, the contention that the petitioner was appointed against a reserved category post, is also without merit. There is no condition in the appointment letter that the appointment was being made against the reserved category post or that the appointment was only for a temporary period, till such time as a suitable candidate from the reserved category was available. 12 12. In these circumstances, the submission of the learned counsel for the respondents that the appointment was for a temporary period cannot be accepted. There can be no doubt that the appointment was on probation and, therefore, the petitioner would be deemed to be permanent after completion of two years in service i.e. from 6.10.1995. There is no material on record to indicate that during the period of probation the behaviour or work of the petitioner was not upto the mark. Apart from this, the question of the petitioner being appointed against a reserved category post does not arise. The post to which the petitioner was appointed was that of a Librarian which is an isolated post. There is no pleading in the written statement that the institution was running more than one school and that, therefore, the post was not an isolated post. 13. The contention of the learned counsel for the respondents that the appointment itself was not valid as it was not in accordance with Rule 9, has not been pleaded in the written statement. There is no material at all to indicate that the appointment was not valid. The learned counsel sought to justify his submission by pointing out that the appointment order refers to the petitioner’s applications dated 13.9.1993 and 18.9.1993. 13 He then points out that, in para 3 of the petition, the petitioner has pleaded that she applied for the post when she learnt that the respondents were to employ a qualified Librarian. In my view, if it is the case of the respondents that the appointment itself was invalid, then it was for the respondents to plead so in their written statement. There is not a whisper about this in the written statement. Therefore, in my opinion, this submission of the learned counsel for the respondents is an after-thought and cannot be accepted. Had there in fact been an invalid appointment, the contention would certainly have been raised by the respondents in their written statements. Apart from this, Rule 9(8) provides that a reserved post must be advertised. However there is no such requirement for advertisement of a post in the open category, such as the post of a Librarian. Rule 9(3) only contemplates an application being made by the candidate with the requisite details in respect of educational and professional qualifications, experience, etc. The petitioner had applied for the post of Librarian, which is not a reserved post since it is an isolated post, in the manner prescribed under Rule 9(3). Therefore, the contention of the learned advocate for the respondents is untenable. 14. The question therefore is, what relief can be 14 granted to the petitioner at this stage. Undisputedly, she has been reinstated in service by an interim order of this Court passed on 30.6.1998. In my opinion, there can be no dispute that the petitioner’s appointment was valid and that she was appointed on probation. However, there is no material before me to establish the fact that the petitioner had in fact been prevented from signing the muster roll. Mere pleadings cannot take the place of evidence. There is correspondence on record which indicates that the services had been terminated at an earlier date, before her confinement after which she was reinstated. In respect of the subsequent termination from service, the only letter which was written to the management by the petitioner is of 2.3.1996, indicating that she was prevented from signing the muster roll. There is no material on record to indicate whether the muster rolls were produced before the Tribunal. In such circumstances, in my view, the matter will have to be remanded to the Tribunal for a decision on these issues, namely, (i) whether the services of the petitioner were illegally terminated on and from 23.2.1996 or whether she had abandoned her services as contended by the respondents ? (ii) Whether the petitioner is entitled to back wages from 23.2.1996 till she was reinstated by the order dated 30.6.1998 ? and (iii) Whether the petitioner is entitled to any 15 further wages, if she has not been paid salary in accordance with law after her reinstatement pursuant to the order dated 30.6.1998 passed by the High Court. 15. The orders of the Tribunal are, therefore, set aside. 16. The Tribunal will decide the aforesaid issues within a period of three months from today. 17. The petitioner will be continued in service during the pendency of her appeal before the School Tribunal. 18. In the event the appeal is decided against the petitioner, she will be continued in service for a further period of four weeks. 19. The respondents shall pay the salary due to the petitioner which has not been paid to her from 1.9.1995 to 25.10.1995 including leave salary in accordance with Rule 16 of the M.E.P.S. Rules, within a period of four weeks from today. 20. Rule made absolute. Writ petition allowed. No order as to costs.