1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.492 OF 1991. Smt.Meenaxi D/o Narayanrao Kadam, Aged major, Occ.Asstt. Teacher, Cosmopolitan Vidyalaya, Kinwat, Dist. Nanded. ... Petitioner. Versus 1. The Secretary, Cosmopolitan Educaton Society, through Cosmopolitan Vidyalaya, At Kinwat Dist. Nanded. 2. Head Master, Cosmopolitan Vidyalaya,Kinwat, Dist. Nanded. 3. Education Officer, Zilla Parishad, Nanded. ... Respondents. ... Mr.S.K.Shelke, advocate for the petitioner. Mr.A.G.Godhamgaonkar, advocate for the Respondent No.1. Respondent Nos.2 and 3 served. ... CORAM : V.R.KINGAONKAR,J. Date : 05.01.2010. 2 ORAL JUDGMENT 1. By this petition, the petitioner impugns judgment and order rendered by learned Presiding Officer of School Tribunal, Aurangabad in appeal No.45/1988. Her appeal U/s 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (For short, the MEPS Act) came to be dismissed. 2. The petitioner is duly qualified being graduate and D.Ed. to work as Asstt. Teacher. She had worked as an Asstt. Teacher in Gurudeo High School, Bhoom for academic year 1979-80. She responded to an advertisement issued by the Respondent No.1 in month of September 1985. She attended the interview. She was duly selected by the Committee of the Respondent No.1. She was appointed as an Asstt. Teacher vide appointment order dated 1.10.1985 for the academic year ending on 30.4.1986. The appointment order indicated that she was appointed on temporary basis for the said academic year i.e. 1985-86. Her appointment was continued for the next year. There is no dispute about the fact that she 3 completed her services for the couple of years after the initial appointment without any adverse action against her. 3. The petitioner approached the School Tribunal, alleging that her services were orally terminated without any reason and illegally. She asserted that she was appointed for the next academic year 1987-88 and had worked satisfactorily for more than two (2) years. She contended that she was a deemed permanent employee and, therefore, could not have been terminated without following due procedure. She asserted that when she went to join her duties after the summer vacation period was over, she was not allowed to sign the muster roll and was orally informed about her termination. The petitioner, therefore, challenged her oral termination on the ground that it was bad in law being violative of the relevant provisions of the MEPS Act. 4. The Educational Institution i.e. the Respondent No.1 resisted the petitioner's appeal 4 by filing written statement. It was case of the Respondent No.1 that the petitioner was appointed against temporary vacancy for a fixed period and was not entitled therefore, to claim benefits of deemed permanency. It was further contended that the petitioner was appointed against a reserved post meant for ST category but because of unavailability of suitable candidate, she was given temporary appointment from time to time. The respondent No.1 alleged that the petitioner did not acquire any right since the initial appointment itself was against reserved post and that it was not a permanent appointment. The Respondent No.1 submitted that there was no need to follow procedure envisaged under Rule 36 and 37 of the MEPS,Rules for the purpose of termination inasmuch as the petitioner could not have gained status of a permanent employee. 5. The School Tribunal held that the petitioner was appointed against reserved post and for temporary period. The School Tribunal, therefore, held that she could not have been treated as a permanent employee. Consequently, 5 the appeal came to be dismissed. 6. Clinching question is whether the appointment of the petitioner was initially made against a reserved post and for temporary period. The key issue is whether the petitioner could have claimed status as permanent employee on assumptive basis due to legal fiction created by virtue of Section 5(2) of the MEPS Act. 7. Heard learned counsel. 8. The initial appointment order dated 1.10.1985 (Exh.A) does not show that the petitioner was appointed against a reserved post. The appointment order reveals, however, that she was appointed as purely temporary employee for the academic year 1985-86. The appointment letter does not show that it was an appointment for fixed period. It also does not show that she was appointed in temporary vacancy created due to long leave or deputation period of any other employee. The appointment letter shows that she had submitted her application for appointment on 6 29.9.1985 in pursuance to which she was appointed w.e.f. 1.10.1985. It appears that the copy of advertisement was not placed on record when the appeal was heard before the learned Member of the School Tribunal. However, today such copy of the advertisement is placed on record along with the reply filed by the Respondent No.1. The copy (Annex.1) does not show the date of the advertisement though it shows that the candidates were called for interview on 14.7.1985. The advertisement also does not show that the three (3) posts to be filled in were the reserved posts. Copy of the advertisement shows that priority was to be given to the ST, NT and DNT candidates. Moreover, there appears no nexus between the said advertisement and the appointment of the petitioner. For, as shown above, the appointment letter (Exh.A) reveals that the petitioner was appointed as per her application dt.29.9.1985, whereas the said advertisement shows that the interviews were to be held on 14.7.1985. Needless to say, the copy of advertisement (Annex.1) has no positive nexus with the appointment of the petitioner. 7 9. The pleadings of the Respondent No.1 also do not show that the initial appointment of the petitioner was against a reserved post. It would be useful to refer the specific averments made by the Respondent No.1 at the fag end of paragraph 1 of the written statement. It is stated as below : "About earlier appointment answering respondent is not aware. The advertisement referred by the appellant also disclosed that it is a post to be filled from open category." The tenor of such pleadings of the Respondent No. 1 clearly go to show that the Respondent No.1 expressed ignorance regarding previous appointment of the petitioner as Asstt. Teacher in Gurudeo High School at Bhoom. The Respondent No.1 could not have expressed any ignorance about her earlier appointment in the same School and therefore, the pleadings pertain to the prior appointments or experience of the petitioner in another School. In other words, there is clear statement of fact in the pleadings of the 8 Respondent No.1 that the advertisement referred by the petitioner in her pleadings was in respect of the post available for open category. The petitioner had referred to an advertisement issued in local newspaper called "Godatir Samachar" which was published somewhere in September 1985 for appointment of teachers in the Educational Institution i.e. Respondent No.1. The copy of advertisement (Annex.1) filed along with reply affidavit relates to the publication made somewhere in the month of June or first week of July 1985 because the date of interview is kept as 14.7.1985. Thus, it is amply clear that the petitioner referred to the advertisement issued in September 1985 and with reference to the same reply was given by the Respondent No.1 to the effect that the said advertisement was for the post which was to be filled in from open category. Once, this factual position is cleared, it goes without saying that the petitioner was initially appointed against permanent and open post though temporary for the relevant academic years. 9 10. The appointment of the petitioner for both the educational years was approved by the Education Officer for 1985-86, 1986-87. It was only for the year 1987-88 that the approval was given to her appointment against the post reserved for ST. The petitioner had no reason to know as to what kind of proposal for approval was submitted by the Respondent No.1 to the Education Officer. What emerges from the record is that the Respondent No.1 played mischief while forwarding proposal regarding approval for appointment of the petitioner in 1987-88 and changed the category by showing that it was the appointment on reserved post. It appears that copy of such appointment letter was not given to the petitioner though she was allowed to work during 1987-88. The petitioner asserted before the School Tribunal that the practice of the management of the Respondent No.1 was that the appointment orders were not being given. It is probable, therefore, that the proposal for the approval to the appointment of the petitioner in respect of the academic year 1987-88 was forwarded behind her back and the third 10 appointment letter was never given to her. This was a trick played to shunt out the petitioner at any time in future. 11. The purport of Section 5(2) of the MEPS Act is to provide an umbrella of protection to the employees of the Schools against arbitrary and illegal terminations. Section 5(2) of the MEPS Act provides for deemed permanency and once such deemed provision is complied with then it is necessary for the management of the School to follow the procedure envisaged under Rule 36 and 37 of the MEPS Rules, as and when the employee is to be removed/terminated. Section 5 sub-clause (2) reads as follows : "5. Certain obligations of Management of private schools : (1) 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: (2) Every person appointed to fill a 11 permanent vacancy [except shikshan sevak] shall be on probation for a period of two years. Subject to the provisions of sub-section (3) and (4), he shall, on completion of this probation period of two years, be deemed to have been confirmed" 12. Considering the plain meaning of Section 5(2), it is amply clear that the petitioner acquired deemed permanent status. There is no substantial reason to infer that she was appointed against a reserved post when she joined the Respondent No.1 for the first time in 1985. The inference drawn by the School Tribunal is far fetched and against the record. The School Tribunal seems to have been much impressed due to language of the third appointment order dated 15.6.1987 and the copy of statement of approval issued by the Education Officer, Zilla Parishad, Nanded. The School Tribunal failed to see that the petitioner had no role to play in making the proposals for approval and was unconcerned with the process of such approval. Under the 12 circumstances, the approach of the School Tribunal is rather perverse. The School Tribunal committed patent error while holding that the petitioner was appointed against a reserved vacancy meant for ST category and it was a fixed tenure appointment which did not enure to her benefit so as to claim deemed permanency. 13. Mr.Godhamgaonkar, strenuously argued that the petitioner could not have claimed deemed permanency when the appointments were only on temporary basis. He referred to "Bharatiya Gramin Punarrachana Sanstha Vs. Vijay Kumar and others" (AIR 2002 Supreme Court 3092). The Apex Court held that the appointee had been terminated before claiming deemed permanency inasmuch as the termination was made before two (2) years of service and, therefore, the reinstatement could be limited only for the period of two (2) years. It is important to notice that even in the case referred to above, the Apex Court came to the conclusion that the plea of the School that the post in question was reserved for ST was not proper. It has been observed that advertisement 13 and order of appointment did not support plea of School and reinstatement of the employee could not be faulted on such ground. The appointment itself was limited for period of two (2) years because the employee had not completed the probation period of two (2) years so as to seek benefit of Section 5(2) of the MEPS Act. With due respects, the case law is not applicable to the facts of present matter. 14. For the reasons aforestated, I am of the opinion that the School Tribunal committed patent error while dismissing the appeal preferred by the petitioner. The impugned judgment is, therefore, unsustainable and will have to be set aside. Hence, the petition is allowed. The impugned judgment is set aside. The termination of the petitioner is quashed. The petitioner shall be immediately reinstated, if already not allowed to join the duty, and 50% back wages be paid to her from date of the alleged oral termination till the reinstatement. 14 She will be entitled to consequential benefits of seniority etc. (V.R.KINGAONKAR,J.) asp/office/wp49291