1 Lpa92-11 dmt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO. 92 OF 2011 IN WRIT PETITION NO. 6878 OF 2010 The Secretary, Sonupant Dandekar Shikshan Mandali & Anr. .... Appellants. vs. Madhubala Vishwanath Pune & Ors. .... Respondents. Mr. Mihir Desai i/by Ms. Manjiri Parasnis Deshmukh for Appellants. Mr. D.G. Dhanure for Respondent No.1. Mr. S.D. Rairikar, AGP., for Respondent No. 2. CORAM : P.B. MAJMUDAR & A.A. SAYED, JJ. DATE : 15TH JUNE, 2011. P.C. This appeal is preferred against the judgment and order passed by the learned Single Judge dated 19.11.2010 in Writ Petition No. 6878 of 2010. By the impugned order, the learned Single Judge dismissed the writ petition filed by the petitioners and confirmed the order passed by the School Tribunal. The respondent herein was appointed as a Shikshan Sevak. She was appointed on a 2 Lpa92-11 part time post. She continued to serve for nine years. Subsequently the management gave advertisement of filling in the said post by way of full time teacher. However, as per the say of the present respondent though she was given interview letter, she was not interviewed by the Committee and subsequently another teacher was appointed in her place. She challenged the said order by way of an appeal before the School Tribunal. The School Tribunal found that as per the scheme of Shikshan Sevak, an employee who completes three years is deemed to be confirmed on the said post. The School Tribunal accordingly allowed the appeal of the appellant and passed an order of reinstatement with other benefits. The respondent management challenged the said order by filing a writ petition before the learned Single Judge. The learned Single Judge found that the Tribunal has rightly held that the respondent having completed continuously for nine years, she was entitled to permanency in accordance with section 5[2A] of the MEPS Act. The learned Single Judge accordingly dismissed the writ petition against which this Letters Patent Appeal is filed by the appellant management. 2. Mr. Desai, the learned counsel for the appellant vehemently submitted that since the respondent was appointed on temporary basis, the management was justified in advertising the post for making regular appointment. It is submitted that since the respondent had not appeared before the Interview Committee, the management selected another candidate. 3 Lpa92-11 3. In our view, the contention raised by the appellant before us is not justified. It is required to be noted that the Scheme of Shikshan Sevak is a special scheme in which a person can be appointed initially on a fixed salary and who might be performing identical duty with other teachers who are appointed as regular teachers. As per the scheme, a person who is appointed as a Shikshan Sevak, after completing three years is to be absorbed as a regular employee and is to be given regular pay scale. The respondent herein served continuously for nine years under the Shikshan Sevak Scheme. The appellant is a grant-in-aid institution and instead of giving benefit of permanency to the respondent on a regular basis, they again advertised the post and appointed someone else. The learned counsel for the respondent submitted that it is a clear case of exploitation of an employee. The Full Bench of this Court while considering the Scheme of Shikshan Sevak in the case of Ram Avadh Mahel Pal vs. Shivdutta Educational Trust & Ors, reported in 2007 (6) Mh. L.J. 659 has held in paragraph 6 as under :- “6. The reference before the Full Bench will now stand covered by the amendments made by Maharashtra Act XIV of 2007. As a result of the amendment, it has been provided that every person appointed as Shikshan Sevak shall be on probation for a period of three years. Moreover, subject to the provisions of sub sections (3) and (4) of Section 5 a Shikshan Sevak shall on completion of the probation period of three years be deemed to 4 Lpa92-11 have been appointed and confirmed as a teacher. Incidently, it may be necessary to note that the gazette notification dated 15th February, 2007 which is referred to in the definition of the expression 'Shikshan Sevak' in Clause (24A) of sub section (2) as amended incorporates the Government Resolution dated 13th October, 2000. ” 4. The School Tribunal while considering the appeal has in paragraph 18 observed as under :- “18] In the light of the observations made by Full Bench of Hon. Bombay High Court in the case of Ram Avadh Mahel Pal referred above it becomes crystal clear that Respondents should have issued the appointment order of appellant as part time Shikshan Sevak for three years and after completion of said three years period satisfactorily Respondents should have appointed appellant as regular Assistant Teacher. Respondents have cleverly issued appointment orders to appellant every year and they used to terminate her service every year. This act of Respondents is contrary to the Clause 8 of G.R. Dated 13-10-2000 and it is also contrary to Section 5[2] [a] of M.E.P.S. Act. Hence in my opinion appellant who has completed 9 years of service as part time Shikshan Sevak has definitely obtained the status of deemed 5 Lpa92-11 permanent part time Assistant teacher in Respondent College as provided by Section 5 [2] [a] of the Act and Clause 8 of G.R. Dated 13-10-2000. In such circumstance when appellant has obtained the status of deemed permanent part time Assistant Teacher Respondents should not have issued the disputed termination order dated 20-4-2009 having effect from 30-4-2009. Thus it becomes clear that Respondents have issued said termination order illegally and contrary to the provisions of law. Respondents have raised the defense that appellant has abandoned her right to get reappointed as part time Shikshan Sevak but in my opinion no question of reappointment of appellant arise because she has satisfactorily completed three years of services as Part time Shikshan Sevak and she has obtained the status of deemed permanent part time Assistant Teacher. In such circumstances as appellant has completed her probationary period satisfactorily and as there is no record filed by Respondents before this Tribunal showing that appellant’s service was not satisfactory I find that Respondent Management has acted arbitrarily by issuing disputed termination order. Hence I find that said termination order is bad in law and necessary to be quashed and set aside. Further, as appellant has obtained the status of deemed permanent part time Assistant Teacher I find that she is entitled to the reinstatement to the post of part time Assistant Teacher in Respondent College with 6 Lpa92-11 back wages. Hence I have recorded my findings against point No. 1 and 2 in the affirmative and proceed to pass the following order.” 5. In our view, it cannot be said that the School Tribunal or the learned Single Judge committed any error or illegality in not accepting the say of the appellant in this behalf. We consequently do not find any substance in this appeal. The Letters Patent Appeal is accordingly dismissed. No order as to costs. 6. In view of the dismissal of the L.P.A., the civil application does not survive. The same also stands dismissed. (A.A. SAYED, J.) (P.B. MAJMUDAR, J.)