1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 511 OF 2008 Model Education Society & Anr. ... Petitioners V/s Mrs. Tanuja Vinayak Naik Dessai & 2 Ors. .... Respondents Mr.V.R. Tamba, Advocate for the Petitioners. Mr. . Menezes, Advocate for Respondent No.1. Mr. M. Salkar, Addl. Govt. Advocate for Respondents No. 2 & 3. CORAM : N.A. BRITTO, J. DATE : 31 st MARCH, 2009 ORDER : Challenge in this Writ Petition, filed under Article 227 of the Constitution, is to the order dated 1/08/2008 of the learned Administrative Tribunal, Panaji, Goa, by which the termination of respondent no.1, as a teacher, has been set aside and the said teacher is directed to be reinstated. 2. Admittedly, the petitioner-Management is a recognized unaided school governed by the Education Act, 1984 and the Rules framed thereunder and had 4 classes in its primary section and the respondent no.1, a trained graduate teacher, by virtue of appointment letter dated 5/07/2005 was appointed on probation for a period of 2 years w.e.f. 7/07/2005. The said Education Act mandates vide Section 19 thereof that School Managements ought not to collect fees or any other charges or receive any other payment 2 beyond the prescribed limit fixed by the Director and any contravention thereof is made punishable with imprisonment for a term which may extend to 6 months or above, etc. The provisions of the said Section was brought to the notice of the petitioner-Management of the school vide circular dated 25/01/2008 and the petitioner by letter by 7/05/2008 noted that the petitioner was asked not to levy any development charges or other charges on students being admitted to primary section and, as such, the Management had decided to reduce the number of teachers from 5 to 4 and, thereafter, proceeded to terminate the services of respondent no.1 w.e.f. 9/06/2008. 3. The respondent no.1 assailed the said order before the Tribunal and the stand taken before the Tribunal by the petitioner was that the petitioner had only one division in the primary section and needed only 4 teachers maximum and, since the petitioner was facing financial constraints, had to take immediate steps and as the respondent no.1 was the junior most and was teaching Konkani her services were terminated. 4. The learned Tribunal noted that the appointment and termination of any teacher in the school was regulated by the Act and the Rules made thereunder and the termination without following provisions of the Act and the Rules was bad in law. Assuming the services of respondent no.1 were on probation, her services could not be terminated without prior consent of the 3 Director of Education. The learned Tribunal also held that respondent no.1 could not be considered on probation and the petitioner had not made out any case of surplus and, therefore, proceeded to allow the appeal filed by respondent no.1, teacher. 5. Shri Tamba, learned Counsel on behalf of the petitioner had referred to Rule 76 of the Goa School Education Rules, 1986 and has submitted that the appointment of respondent no.4, as a teacher, was illegal as no approval of the Director of Education was taken. This submission cannot be accepted. True, Sub-rule 2 of Rule 76 required that every appointment made of the Managing Committee to a recognized school shall be initially provisional and shall require approval of the Director of Education. It is not the case of the petitioner that respondent no.1 had to take the approval of Director of Education and it was required to be taken by the petitioner. The petitioner cannot take advantage of its own wrong and now contend that the appointment of the respondent no.1 was bad in law as no approval of Director of Education was taken. The submission therefore needs to be rejected. 6. The case of the petitioner that respondent no.1 was rendered surplus also cannot be accepted. As pleaded by respondent no.1, the petitioner- school had 4 primary classes and, in the first, there were 46 students and, in the next 3, there were 48 students each, which required the petitioner to have 4 at least 4 teachers. In fact, no effort has been made on behalf of the petitioner to demonstrate as to how many subjects per week each teacher was required to teach and based on the same, the number of teachers were required to teach in the primary section of the school. Such assistance has also not come from the Director of Education, who is a party respondent before this Court. The seniority list at page 29 of the paper book shows that respondents no.1’s position would be at number 3 after the teacher shown at serial no.2 was terminated in the year 2004 and if that be the case and on the principle of ‘last comes goes first’ the services of respondent no.2 could not have been terminated. The respondent no.1 might have been a probationer, but, it is not the case of the petitioner either in the termination letter or for that matter before the Tribunal, that the services of respondent no.1 were discharged as her services were found not to be satisfactory during the probation period. Therefore, that ground is not available to the petitioner. 7. If the finances of the petitioner had dwindled, because the petitioner was doing something contrary to the Act and was required not to do so, the only option which was available to the petitioner was either to increase the fees payable by the students or decrease the salaries payable to the teachers. The petitioner had 4 classes to be taught for which minimum number of teachers required would be 4. The respondent no.1 was at serial no.3 of the seniority list and, as such, her services could not be terminated as in fact there 5 was no need to reduce the teachers. The circular dated 25/01/2008 appears to have been used only as a ruse to terminate the services of respondent no.1. 8. No fault can be found with the impugned order. There is no merit in this petition and, accordingly, the same is hereby dismissed with costs. N.A. BRITTO, J. NH/-