(1) WP. 3210.2008 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.3210 OF 2008 Dilip S/o Govindrao Mare Age : 43 years, Occu.: At present Nil, R/o Walandi, Tq. Deoni, Dist. Latur .. Petitioner VERSUS 1. The Secretary, Gramin Shikshan Prasarak Mandal, Walandi, Tq. Deoni, Dist. Latur 2. The Principal, Shri Balaji Junior College M.C.V.C. Courses, Walandi, Tq. Deoni, Dist. Latur 3. The Deputy Director of Technical Education, Division Office, Bhadkal Gate, Aurangabad .. Respondents Mr. V.D. Salunke, Advocate h/f. Mr. T.M. Venjane, Advocate for the Petitioner Mr. S.S. Deo, Advocate for the respondent no.1 Mr. N.H. Borade, AGP for the respondent-State ... CORAM : V.R. KINGAONKAR, J. DATED : 12TH AUGUST, 2010 ORAL JUDGMENT:- 1. Rule. Rule made returnable forthwith and heard finally by consent of the parties. (2) WP. 3210.2008 2. By this Petition, the petitioner challenges judgment and order rendered by learned Presiding Officer of School Tribunal, Latur in appeal no. 88 of 2000 (Old) /appeal no. 173 of 2006 (New). 3. The petitioner was appointed as Teacher on the establishment of Shri Balaji Junior College, Walandi which is admittedly run by the respondent nos.1 and 2. The petitioner’s case before the School Tribunal was that he had applied in response to an advertisement dated 9.6.1994. Since he was found to be duly qualified and eligible for such appointment, the respondent no.1 appointed him as Full Time Lecturer to work in the College which was running MCVC course. He started working with the respondents 1 and 2 since 13.6.1994 as per the appointment letter issued in his favour and he worked continuously for academic years 1994-95, 1995-96, 1996-97, 1997-98 and 1998-99. His appointment was approved from time to time. The respondent no.2 terminated his service by letter dated 29.4.2000 which was actually received by him on 16.6.2000. The petitioner further alleged (3) WP. 3210.2008 that he was illegally terminated though he had been working as deemed permanent Teacher. He contended that his appointment was legal and there was no reason for the respondent nos.1 and 2 to terminate his services. Consequently, he urged to set aside the order of termination and to reinstate him in the service alongwith the backwages. The learned Presiding Officer of the School Tribunal, held that the appeal was not filed within prescribed period of limitation. It was further held that the appointment of the petitioner was on the post which was reserved for V.J.N.T. category and, therefore, the petitioner was not entitled to seek benefit of permanency as contemplated under section 5(2) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short “MEPS Act”). In view of such finding, the appeal came to be dismissed. 4. Heard learned counsel for the parties and learned AGP. 5. So far as the question of limitation is concerned, it is important to notice that the (4) WP. 3210.2008 impugned termination order was said to have been issued on 29.4.2000. It was the contention of the petitioner that he received the termination order only on 16.6.2000. He made such a categorical statement on affidavit. The appeal was filed on 30.6.2000. It is important to notice that on the same day, the learned Presiding Officer passed order on the application for interim relief. The order dated 30.6.2000 may be quoted as follows:- “ ORDER (Passed on 30-6-2000) Heard. Since it appears that the services of the appellant are terminated during vacation. So also no clarity is seen in the letter issued by Dy. Director of Education dated 29-4-2000. It is necessary to grant a stay to operation of termination order dated: 29-4-2000. The respondents are directed to continue services of appellant with salary 60% till final disposal of stay petition. Issue notices to respondents. AURANGABAD Sd/- DATED : 30-6-2000 Presiding Officer School Tribunal Aurangabad.” (5) WP. 3210.2008 Perusal of the above order, will make it amply clear that even though, the service of the termination order was assumed to be effected during the period of Summer Vacation, then also it could not have been so done. 6. At this juncture, it is necessary to refer Rule 28 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (for short ”M.E.P.S. Rules”). Bare perusal of Rule 28(1) will make it manifestly clear that in case of employee entitled to vacation, the termination notice shall not be given during the vacation or so as to cover any part of the vacation or within one month after the vacation. In the present case, the petitioner was entitled to vacation because the College was closed during the Summer Vacation and there was no particular embargo put on the petitioner to refrain himself from proceeding on vacation. It is obvious therefore, that he could not have been served with termination order before re-opening of (6) WP. 3210.2008 the educational institution. The learned Presiding Officer did not appreciate the purport of the tenor of Rule 28 of the M.E.P.S. Rules while holding that the appeal was barred by limitation. In fact, it could not be held that the appeal was barred by limitation. Since it was promptly presented after the re-opening of the institution and within a fortnight after the purported service of the termination order on the petitioner. The learned Presiding Officer therefore, committed patent error while dismissing the appeal on such ground. 7. Coming to the merits of the case, it may be gathered that the advertisement of the post does not show that the post was reserved for VJNT category. Copy of the advertisement (Exh.”R-1”) is placed on record. There is no scintilla of evidence to infer that the petitioner was appointed against the reserved post. It appears that, subsequently, the approval was refused to the proposal submitted by the respondent no.2 on the ground that roster was not followed by the respondent no.1. It is well settled (7) WP. 3210.2008 that where the appointment is approved or not is not the concern of the appointee. It is only for the purpose of budgetary provision that the approval would get significance. If there is no approval granted to the appointment of the petitioner, then the consequence of financial implications are the only material aspects which are required to be taken into account. In such a case, the management cannot escape the responsibility to pay the salary to the employee who has been appointed and was working for more than five years. If this is not done, it would be very easy for the management to appoint a person without discussing the fact that he is appointed against a reserved post and subsequently shunt him out for the reason that there is no approval granted by the Education Officer. This would amount to un- reasonable exploitation of the employee. If the management has committed the mistake then it has to pay for it. The termination of the petitioner was only because of the assumption that the post was continued to be reserved for VJNT category. It appears from communication issued by the respondent (8) WP. 3210.2008 no.2 on 24.12.1999 that the post would be available to open category. The respondent no.2, in fact, issued the experience letter (Exh.”R-2”) which shows that the petitioner’s work and conduct was found satisfactory. There is no reasonable ground to justify the termination of the petitioner and particularly after such a long period of his service. 8. Perusal of communication dated 11.5.1997 issued by the Deputy Director of Vocation Education and Training, Aurangabad goes to show that the appointment of the petitioner was approved as a special case on condition that the further employment shall be as per the roster point. It appears that the respondent nos. 1 and 2 were required to fill up the backlog in the next available employment on the vacant post. Respondents 1 and 2 did not fill up the backlog. The respondents 1 and 2 attempted to take undue advantage of their own wrong. Needless to say, the termination of the petitioner was improper and illegal. 9. In “Priyadarshini Education Trust and anr. (9) WP. 3210.2008 Vs. Ratis (Rafiq) Bano d/o Abdul Rasheed and others 2007 (6) Bom.C.R. 79” a Division Bench of this Court held that a Teacher appointed on a clear vacant post after due selection will be entitled to seek benefit of permanency under section 5(2) under the M.E.P.S. Act. In the present case, there was an advertisement, the post was not reportedly temporary as such, the petitioner was duly appointed after following selection procedure and had worked for more than two years. Hence, he was and is entitled to seek benefit of permanency under section 5(2) of the M.E.P.S. Act. 10. Under these circumstances, the learned Presiding Officer of the School Tribunal committed patent error while holding that the petitioner had no case against the respondent management. It was the contention of the respondents 1 and 2 that the termination was the result of reservation of the post. There was no explanation as to why the backlog was not filled up during the intervening period after appointment of the petitioner. This aspect has not (10) WP. 3210.2008 been considered by the Presiding Officer of the School Tribunal. 11. Taking overall view of the matter and on consideration of the reasons discussed hereinabove, the impugned order is quite un-sustainable and liable to the interferred with. Hence, the Petition is allowed. The impugned order is set aside. The petitioner is directed to be reinstated in the service with 50% of the backwages within a period of four weeks and that the backwages will be payable to him from the date of the termination till this date and that he will be entitled to full pay for the period from today onwards, if he is not reinstated in service. The petitioner will be entitled to recover cost of Rs.10,000/- (Rs. Ten Thousand) from the respondents 1 and 2 being cost of the present Petition. Petition disposed of. Rule made absolute accordingly. Sd/- [V.R. KINGAONKAR, J.] arp