1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2471 OF 1991 Dhirajlal Talakchand Sankalchand Shah ..Petitioner College of Commerce V/s. Ganpat Saraswat & anr. ..Respondents Mr.B.V.Bukhari, advocate h/f. Mr.A.V.Bukhari, Senior Advocate, for petitioner CORAM : B.H.MARLAPALLE, J. DATE : 10TH JANUARY, 2008 ORAL JUDGMENT . This petition impuges the Judgment and Order dated 21st February, 1991 rendered by the School Tribunal, Bombay thereby allowing Appeal No.GEN/155/BOM-58 OF 1990. The School Tribunal was pleased to set aside the alleged oral termination of the appellant-respondent and he was directed to re-instated the plaintiff in his original post and pay him the arrears of emoluments, including pay and allowances from 20th June, 1990 till he is re- instated to his original post. While, admitting this petition, the impugned Judgment and Order was stayed and consequently, the respondent could not 2 be re-instated. The respondent-teacher has filed his affidavit-in-reply and opposed this petition. However, he failed to remain present, when the petition was called out for final hearing. A notice was issued to him which was returned unserved with remark “Left”. Consequently, liberty was granted to the petitioner-management to publish a notice in the local news paper and accordingly, such notice was published in the daily news paper “Navshakti”. Proof of publication has been placed on record. Inspite of issuing a notice, the respondent-teacher remained absent. 2. Some admitted facts in this petition briefly stated are as under :- On or about 22nd February, 1989 an advertisement was published by the petitioner college to fill up the posts of Lecturers in different subjects in the Junior as well as Senior college. Interviews were held. The management could not find a suitable candidate belonging to the reserved category. On or about 21st July, 1989, 3 the respondent approached the petitioner by way of his application in which he pointed out that he possessed the qualifications for appointment to the post of Lecturer in English subject. Consequently, he was appointed with effect from 1st August, 1989 as Lecturer in the Junior college. The said appointment order clearly stated that it was against the reserved category post. On 19th March, 1990 a notice was issued to the respondent-teacher by the petitioner informing him that his tenure would come to an end on and from 20th April, 1990. On 18th April, 1990, the petitioner published fresh advertisement to fill up the posts of Lecturers in various subjects and English was one of them. On the very same day, the respondent submitted his application in response to the said advertisement for the post of Lecturer on full time basis in English subject. The petitioner received only two applications for the post of Lecturer i.e.Mr.Peer Mohamed and the respondent. 3. It is the case of the respondent that as he did not hear anything further regarding the 4 date of interview, he met the Principal of the College on or about 1st June, 1990 and enquired about the interview dates. He further avers that the principal informed him that there would be no interview for him and he would be continued without undergoing the selection procedure for the new academic year in response to his application. The respondent further states that on opening of the college i.e.on 18th June, 1990 he reported for duty and signed the muster which was kept in the office of the Principal. He also signed the muster on 19th June, 1990 but on the next date i.e.on 20th June, 1990, he did not sign the muster as the Principal informed him that she wanted to discuss with him. He further alleged that when he was participating in the meeting, at that time he was called by the Principal and he was asked to leave the college. Thus, his services came to be terminated orally and illegally on 20th June, 1990, as per him. 4. The petitioner-management stated that it had decided not to select the respondent-teacher in response to the application dated 18th April, 5 1990 for the post of Lecturer in English. Interviews were held on 9th June, 1990 and for the subject of English only one candidate by name Mr.Peer Mohamed was found suitable and he was issued an appointment order and he had joined. The management denied that the respondent-teacher was informed by the Principal regarding his continuation without interview in the academic year 1990-91. As far as signing of the muster is concerned, on 18th June, 1990 and 19th June, 1990, it was pleaded by the petitioner-management before the School Tribunal that on 18th June, 1990, the Principal was not in chamber and she was in the High Court on 19th June, 1990, Mr.Vakhade, Lecturer and one of the supervisor incharge of the Junior Section had noticed on 19th June, 1990 that the respondent-teacher had signed the muster and his name was entered in the muster, brought the same to the notice of the Principal and on noticing that the Clerk had inadvertently incorporated the name of the respondent in the muster role, on 20th June, 1990 the respondent-teacher was not allowed to sign the muster. In short, it was the case of the 6 petitioner-management that there was no termination of service and in fact, it was a case of non- selection in the academic year 1990-91 of the respondent in response to the advertisement published on 18th April, 1990 to which the respondent-teacher had also submitted his application. Consequently, the appeal was not tenable on merits. It was further contended by the petitioner-management that in the academic year 1989-90, the respondent was appointed against the reserved vacancy and his tenure of employment came to an end on 24th April, 1990. He did not raise any objection and on the other hand, submitted a fresh application in response to the advertisement released on 18th April, 1990 and the appeal was filed by way of an after thought and there was no termination of service of the appellant either oral or in writing. 5. After hearing both the parties, the School Tribunal noted that (a) when the appellant was appointed against the reserved vacancy in the academic year 1989-90 and such reserved category 7 candidate was not available but in the next academic year, the appellant was continued, (b) On 18th and 19th June, 1990, the appellant had signed the muster and therefore, he was employed without any appointment order in the academic year 1990-91, (c) The appellant couldnot be removed and he was required to be continued in reserve category on temporary basis under Rule 9(9)(a) of the MEPS Rules, 1981. The School Tribunal accepted the case of the appellant that when he was attending a meeting on 20th June, 1990, at that time the Principal asked him to leave the meeting and this action was nothing short of oral termination of services and the same was not proper and was against the principles of natural justice and hence, it has to be set aside. 6. It is not disputed that the appellant possessed the requisite qualifications for appointment to the post of Lecturer in the Jr.college. His appointment in the academic year 1989-90, was against the reserved post and he did not challenge the notice dated 19th March, 1990, 8 informing him that his temporary tenure would come to an end on 20th April, 1990. The School Tribunal admitted that a temporary appointee could have no claim for being continued on permanent post. It was also management's contention that their advertisement was published on 18th April, 1990 and in response to the same the appellant had applied. Thus, termination of service in the academic year 1989-90 was not under challenge. The only issue which was required to be considered by the School Tribunal was that whether the appellant was in fact in employment by way of an appointment issued by the management in the academic year 1990-91 and whether merely by his signing muster on two days he could be deemed to have been appointed as temporary Lecturer. The reasoning given by the School Tribunal to allow the appellant on the basis of interpretation of Rule 9(9)(a) of MEPS Rules, 1981 is patently erroneous, to say the least. 7. Section 5 of the MEPS Act, 1977 deals with the appointment of teachers and that of non- teaching staff in a private school, both permanent 9 as well as on temporary basis. 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 : (Provided that unless such vacancy is to be filled in by promotion, the Management shall, before proceeding to fill such vacancy, ascertain from the Educational Inspector, Greater Bombay, (the Education Officer, Zilla Parishad or, as the case may be, the Director or the officer designated by the Director in respect of schools imparting technical, vocational, art or special education,) whether there is any suitable person available on the list of surplus persons maintained by him, for absorption in other schools; and in the event of such person being available, the Management shall appoint that person in such vacancy.) (2) Every person appointed to fill a permanent vacancy shall be on probation for a period of two years. 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 10 been confirmed. Sub sections (3), (4) and (5) deal with the termination of service. Sub-section 5(5) states that the management may fill in every temporary vacancy by appointing a person duly qualified to fill such vacancy. The order of appointment shall be drawn up in the form prescribed in that behalf, and shall state the period of appointment of such person. It is, thus, clear that as per Section 5 whether the appointment was made on permanent or temporary basis, it has to be given in the form prescribed and it shall be specifically stated whether the teacher is appointed on permanent or temporary basis and this provision is not applicable only when such appointment is on the basis of promotion or by absorption under the provisio to sub-section (1). It is further mandatory that when the appointment is made on temporary basis, such tenure is required to be mentioned. It is, therefore, clear from the scheme of Section 5 that it does not contemplate an oral appointment and secondly, it was not permissible for the School Tribunal to draw an inference that the appellant was continued in the 11 academic year 1990-91 on the basis of an oral order of the Principal or he was appointed on temporary basis under such orders, more so, when the School Tribunal had accepted the management's contention that the appellant had submitted his application in response to the advertisement dated 18th April, 1990 and he was not called for interview along with Mr.Pir Mohamed. In addition, advertisement published on 18th April, 1990 did not speak that it was reserved for any category. The advertisement was for part- time Lecturer in Economics and full time Lecturer in English, Marathi, Hindi and Gujrathi. Below the advertisement, standard note was inserted which stated that the reservation of posts for SC/ST/NT candidates would be as per the Government Rules. The School Tribunal therefore, fell in error to reach to the conclusion that in the academic year 1990-91 the post of Lecturer in English subject was also for a reserved category candidate. Consequently, it could not rely upon Rule 9(9)(a) of the MEPS Rules, 1981 which reads as under :- 12 “In case it is not possible to fill in the teaching post for which a vacancy is reserved for a person belonging to a particular category of Backward Classes, the post may be filled in by selecting a candidate from the other remaining categories in the order specified in sub-rule(7) and if no person from any of the categories is available, the post may be filled in temporarily on an year-to-year basis by a candidate not belonging to the Backward Classes.” 8. There is one more facet to this case which has not been considered by the School Tribunal though the management had placed before it the Selection Committee recommendations. Consequently, interviews were held in the year 1990 for the post of Lecturer and in the said recommendations it was clearly stated that Mr.Pir Mohamed, the only qualified candidate was selected. Record further shows that Mr.Pir Mohamed, in fact, was issued an appointment order on 7th July, 1990 and he submitted his resignation on 23rd July, 1990. A fresh advertisement was published on 16th August, 1990 inviting applications. It is not known whether the petitioner had submitted his application in response to the said fresh advertisement. However, record shows that in place 13 of Mr.Pir Mohamed, Mrs.Padmini Rao came to be appointed on temporary basis for the academic year 1990-91 & 1991-92. Neither Mr.Pir Mohamed nor Mrs.Padmini Rao were impleaded as the additional respondents in the appeal before the School Tribunal and more so, when the appeal was decided while Ms.Rao was in service. 9. Be that as it may, it is clear that there was no termination of service so as to file the appeal under Section 9 of the MEPS Act, 1977 by the respondent-teacher and the School Tribunal committed a manifest error in holding that the said teacher was appointed in the academic year 1990-91 on temporary basis and in any case, it was required to be continued as the post was reserved. The impugned order therefore, is required to be quashed and set aside. 10. Hence, this petition succeeds and same is hereby allowed. The impugned Judgment and Order dated 21st February, 1991 in Appeal No.GEN/155/Bom- 58 of 1990 is hereby quashed and set aside. 14 11. Rule is made absolute accordingly with no order as to costs. (B.H.MARLAPALLE, J.)