JUDGMENT V.R. Kingaonkar, J.
Page 3048
1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.
2. Challenge in this petition is to order dated 22nd August,2005 rendered by School Tribunal, Solapur in Appeal No. 405/2005 whereby reinstatement of respondent No. 1, in the school of petitioners, along with incidental benefits is directed.
Page 3049
3. Petitioner No. 1 is educational trust of which petitioner No. 2 is a school. Admittedly, respondent No. 1 Smt.Rajshree was appointed as a trained teacher by the petitioners. Her appointment was continued from time to time. She alleged that she had acquired right of deemed permanency and continuously rendered unblemished service from June 1988 till midst of June, 2004. She further alleged that she was prevented from signing the muster roll w.e.f. 15th June, 2004 and thereby her services were illegally terminated. She filed an appeal against alleged illegal termination of services. The School Tribunal has allowed her appeal and directed the reinstatement vide the impugned order, along with payment of 50% back wages with a consequential befits from the date of termination till the date of her reinstatement.
4. Briefly stated, the petitioners case is that for the first time permission was granted to run 5th Standard on "no grant basis" in the school i.e. the petitioner No. 2 vide letter issued by the Deputy Director of Education on 4th May, 2000. So, applications were called for filling of three posts as per advertisement dated 23rd May, 2001. Respondent No. 1 Smt.Rajshree applied for the post as a trained teacher and was selected. She was appointed on purely temporary basis in the educational year 2001-2002. Her appointment was subject to approval of the Education Officer. She had submitted a school leaving certificate which indicated her caste as "Hindu Maratha". Her appointment was not specifically approved by the Education Officer. There was backlog of reserved posts on establishment of the school. The suitable candidates were not available from reserved category and as such appointment of the respondent No. 1 - Smt.Rajshree was continued on temporary basis up to the academic year 2004 by giving her yearly appointments subject to approval of the Education Officer and on temporary basis. The management decided to fill up the reserved post as per its resolution dated 21th July, 2004. Therefore, an advertisement dated 21-07-2004 was published in the newspaper and a reserved candidate was appointed after due selection. Thus, there was no illegal termination of the respondent No. 1 - Smt. Rajshree. She was never appointed permanently nor her appointment was approved by the Educational Officer and as such she had no right to remain on the post. The petitioners, therefore, assailed the findings of the School Tribunal and urged to set aside the impugned order.
5. Heard counsel for the parties. Learned Counsel Shri R.N. Dhorde, appearing for the petitioners would argue that the petitioner was never appointed in clear vacancy. He argued that the petitioner was only a temporary trained teacher appointed on reserved post by way of stopgap arrangement and when a reserved candidate was available and appointed then she has lost legal right to continue in the service. He contended that the inferences drawn by the School Tribunal are improper and incorrect. He relied upon certain observations in Hindustan Education Society and Anr. v. Sk. Kaleem Sk. Gulam Nabi and Ors. , Shailaja Ashokrao Walse v. State of Maharashtra and Ors. 1999 (1) Mh.L.J.291, Page 3050 Management of Kalpataru Vidya Samasthe (R) and anther v. S.B.Gupta and Anr. 2005 AIR SCW 4561,Akbar Peerbhoy College and Ors. v. Mrs. Pramila N. Kutty and Ors. 1997(3) Mh.L.J. 195 and Anna Manikrao Pethe v. Presiding Officer, Schol Tribunal, Amravati and Aurangabad Division, Amravati and Ors. 1997(3) Mh.L.J.697. He contended that the School Tribunal should not have allowed the appeal when the respondent No. 1 Smt. Rajshree had not acquired right to continue on the post. Hence, he urged to allow the petition and quash the impugned judgment. On the other hand learned Counsel Shri R.R. Karpe appearing for respondent No. 1 - Smt. Rajshree has supported the impugned judgment.
6. Considering the nature of controversy involved, it is essential to determine whether the respondent No. 1 - Smt.Rajashree acquired status of "deemed permanency" in view of Section 5(2) of the The Maharashtra Employees of Private School (Conditions of Service) Regulation Act, 1977 (MEPS Act for short ). There are certain obligation of management of private schools which have been categorically provided under Section 5 of the MEPS Act. First, the management is under obligation to fill in the prescribed manner every permanent vacancy in a private school by the appointment of a duly qualified person. There is no dispute about the fact that the respondent No. 1 -Smt. Rajashree was a duly qualified teacher in view of the fact that she was H.S.C.,D.Ed., at the relevant date of her appointment. Her case before the School Tribunal was that she was actually appointed as Assistant Teacher from June 1988 in a clear vacancy on permanent basis, though no written appointment order was given to her.
7. Section 5(2) of the MEPS Act reads as under:
Section 5(1) (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 been confirmed.
8. A plain reading of Sub-section (2) of Section (5) would make it manifestly clear that if service of a probationer are not terminated during period of his probation, on account of dis-satisfactory work, as contemplated under Sub clause (3) or Sub clause (4), then there is no discretion left with the management and the confirmation would automatically follow. By legal fiction, a deeming effect is given to the right of confirmation available to a probationer after his satisfactory completion of two years service. The only condition is that the appointment so made shall be against a permanent vacancy.
9. There is no denial to the fact that a permanent vacancy was available at least from June, 1999 when the Deputy Director of Education accorded sanction to start 5th Standard in the school of the petitioners.
10. A progress card of one student of sixth (VIth) standard for the academic year 1998-99 was filed on record of the School Tribunal. The progress card revealed that it bears signatures of the respondent No. 1 - Smt. Rajshree as a Class Teacher and also the concerned Head Master of the school. This material fact was not controverted by the school management. The contention of the respondent No. 1 -Smt. Rajshree that her appointment was much prior to Page 3051 2001 has been thus fortified by such entries on the progress card. The school management sought to rely upon a letter dated 4th May, 2000 issued by the Deputy Director, Education which would show that standards 5th to 7th were permitted from June, 1999. The management did not explain, however, anything about the entries in the progress card produced before the School Tribunal. It is probable that the unrecognised classes were already started by the School Management and as such appointments were made without issuing written orders to the concerned teachers.
11. The learned Counsel Shri R.N.Dhorde invited my attention to various orders issued from time to time regarding appointment of respondent No. 1 Smt. Rajshree from 2001 till 2003. It is true, no doubt, that these orders were issued with clear intimation given thereunder that the appointment was on purely temporary basis. The service of appointment letters on the respondent No. 1 - Smt. Rajshree was not effected in legal manner as provided under Rule 9(5) of the MEPS Rules, 1981. It is incumbent on the management to obtain receipt in token of having received the appointment order from the concerned candidate. The petitioners did not produce any record regarding acknowledgement given by the respondent No. 1 -Smt.Rajshree regarding receipt of such appointment letters by her. The School Tribunal, therefore, gathered that in absence of written acknowledgement, the conditions enumerated in the appointment letter were not made known to the respondent No. 1 - Smt.Rajashree. Obviously, the knowledge about such terms of appointment could not be attributed to her. I am of the opinion that such inference drawn by the School Tribunal is well founded and correct.
12. It appears that the respondent No. 1 -Smt.Rajshree was working in the school of the petitioners from June, 1998. She was employed to teach the unrecognised classes which were started in anticipation of approval by the Education Officer. The first appointment letter was issued to her on 12th June, 2001 after the approval to the Standard 5th to 7th was received from the Deputy Director. Once it is found that she was continuously working from June, 1988 as an Assistant Teacher, then she cannot be deprived of her claim for permanency in view of Section 5(2) of MEPS Act. In case of Baburao Amrutrao Kharkar v. State of Maharashtra (1997(2) LLN 1098), a Division Bench of this Court held that when the school teacher would complete two years service on probation then he ought to be deemed as a confirmed teacher. It has been held that the service of such confirmed teacher can not be terminated without complying with the Rules.
13. The learned Counsel Shri R.N. Dhorde invited my attention to the fact that respondent No. 1-Smt Rajshree had produced her school leaving certificate which indicated her caste as "Hindu Maratha". He further invited my attention to a copy of letter dated 29th May, 2002 which was issued by the petitioners and was acknowledged by the respondent No. 1-Smt.Rajshree. This letter would show that her appointment for the educational year 2001-2002 was not approved due to existing back log of reserved post in the school and hence would not be continued further for the year 2002-03. Still, however, for the year 2002-2003 she was appointed to work as Assistant Teacher and hence there was no reason for her to ventilate any grievance against the petitioners. The record would show that on 18.08.2004 the respondent Page 3052 No. 1-Smt.Rajshree submitted a letter along with her caste certificate. The tenor of the letter (Exh.L) would show that she claimed that she was appointed from 1998-1999 and was continuously serving for about six years. She submitted further that she is member of OBC category and had forwarded a xerox copy of the caste certificate along with the application. An endorsement was made on the application that it was not accompanied by such certificate of her being member of OBC category. The petitioners made correspondence with the Education Officer, Zilla Parishad, Ahmednagar. It is conspicuous that the respondent No. 1-Smt.Rajshree had submitted a certificate which indicated her caste as "Kunbi" and as such she could claim post reserved for OBC category.
14. The question is as to why she submitted such application dated 18.08.2004 and forwarded a copy thereof to the Education Officer. It appears that information was called by the Education Officer for 2002-2003 regarding the filling of back log. There was no express refusal to grant approval to the appointment of the respondent No. 1-Smt.Rajshree for the relevant period. According to the petitioners, when approval was granted in respect of other appointments, it is implied that the appointment of the respondent No. 1-Smt.Rajshree was not approved. It is difficult to countenance such a contention of the petitioners. The correspondence would show that a detailed information was called prior to consideration of the proposal to approve the appointments. There was no categorical refusal by the Education Officer to approve the appointment of respondent No. 1-Smt.Rajshree as an Assistant Teacher. It appears that when she was informed that the approval was not received from the concerned Education Officer due to non-filling up of the back log and when she gathered that an attempt was being made to appoint reserved candidates, including a candidate from OBC category, then she submitted the letter dated 18.08.2004 along with the copy of her caste certificate.
15. At this juncture, it is pertinent to note that the petitioners had sent a letter dated 22nd September, 2003 (Exh.H) addressed to the Education Officer. The letter dated 22.09.2003 discloses that name of respondent No. 1- Smt. Rajshree was shown at Serial No. 1 and it has been categorically stated in the letter that in all five teachers and one peon were appointed from the reserved categories and thereby the back log of reserved posts was filled up. Needless to say, the name of respondent No. 1 -Smt.Rajshree was shown in the list of those who were appointed from the reserved category members. The petitioners then clarified that the back log was filled up by making such appointments, including the appointment of the respondent No. 1-Smt.Rajshree. Consequently, now the petitioners can not be allowed to turn volte-face and say that she could not be appointed on the reserved post. If her caste certificate is invalidated by competent authority then the petitioners may legally terminate her service and may take appropriate action against her as per the law. The caste certificate may be referred for verification but, till the decision of the Caste Scrutiny Committee, the petitioners can not terminate her service on the ground that she is a member of open category.
16. The School Tribunal found that though a proposal was forwarded to the Education Officer by the petitioners for grant of approval yet it was not properly Page 3053 justified and hence a query was raised by the Education Officer. The School management did not take proper care to pursue its proposal. It is of common knowledge that the School Teachers are many a times unaware about the correspondence between the Education Officer and the management. The School management by letter dated 22.09.2003 informed the Education Officer that the back log of reserved posts was filled up. So, now it can not be said that proposal regarding appointment of the respondent No. 1 was not approved by the Education Officer due to non-filling of the back log of reserved posts. Moreover, the Education Officer did not support such contention of the petitioners. The Education Officer filed his report - cum- say before the School Tribunal. The Education Officer made it clear that appointment of the respondent No. 1-Smt.Rajshree was against permanent vacancy and it should have been made for couple of years on probation. The Education Officer further clarified that the respondent No. 1-Smt.Rajshree belongs to OBC category and has submitted caste certificate in support of her caste claim. The Education Officer clearly subscribed to the case of the respondent No. 1-Smt.Rajshree and supported her claim. In this view of the matter, the petitioners can not be permitted to say that the appointment of the respondent No. 1-Smt.Rajshree was temporary and that she was not appointed against a reserved post. A Teachers post for OBC category was available and she was eligible for such appointment, at least on the basis of the caste certificate produced by her, and hence the termination of her service was quite improper.
17. The Apex Court in case of "Hindustan Education Society" (supra) held that when the candidate was appointed for 11 months period shown in the appointment letter then it was a purely temporary appointment for a limited period. It is held further that such appointment could not be regarded as permanent one. The case of "Shailaja Ashokrao Walase" (Supra) is on different footing. The facts of the said case are quite different from the facts available in the present case. So also, the case of "Management of Kalpataru Vidya Samasthe (R) and Anr." (Supra), "Akbar Peerbhoy College and Ors." (Supra) as well "Anna Manikrao Pethe"(Supra) are decisions rendered in different fact situation. These Judgments are not of much assistance to the case of the petitioners.
18. All said and done, it can not be over looked that the present petition is under Article 227 of the Constitution. The Supervisory/Revisional jurisdiction of this Court over the School Tribunal can not be expanded so as to treat the petition as an appeal. The findings of the facts can not be disturbed unless there is perversity or School Tribunal has committed some patent error while applying the legal principles. The exercise of jurisdiction under Article 227 of the Constitution is limited and restrictive in nature. The Apex Court in case of Essen Deinki v. Rajiv Kumar observed:
Generally speaking, exercise of jurisdiction under Article 227 of the Constitution is limited and restrictive in nature. It is so exercised in Page 3054 the normal circumstances for want of jurisdiction, errors of Law, perverse findings and gross violation of natural justice, to name a few. It is merely a rvisional jurisdiction and does not confer an unlimited authority or prerogative to correct all orders or even wrong decisions made within the limits of the jurisdiction of the courts below. The finding of fact being within the domain of the inferior tribunal, except where it is a perverse recording thereof or not based on any material what so ever resulting in manifest injustice, interference under the Article is not called for.
19. Considering the above legal position, I find it inappropriate to disturb the findings of the facts as recorded by the learned School Tribunal. For, there appears no serious illegality or any perversity committed by the School Tribunal while reaching the logical conclusion available on the face of the record. It is, therefore, clear that the respondent No. 1-Smt.Rajshree had worked for six continuous years as an Assistant Teacher. She was allowed to work for such a long period due to her satisfactory service and as such she acquired deemed confirmation by virtue of Section 5(2) of the MEPS Act. The School Tribunal has rightly held that her otherwise termination was illegal.
20. In the result, the petition must fail and is accordingly dismissed.
21. Rule is discharged. No costs.