( 1 ) Writ Petition No.6092 of 2011
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.6092 OF 2011
Abed Ullhah Sayyed
Shhoutak Ali Mohammad Ali,
Age-40 years, Occu-Nil,
R/o. At Post Wagholi,
Tq. and Dist. Osmanabad PETITIONER
VERSUS
1. The President,
Bahujan Samaj Prabodhan
Shikshan Sanstha, Kotul
Tq.Akole, Dist.Ahmednagar
2. The Secretary,
Bahujan Samaj Prabodhan
Shikshan Sanstha, Kotul
Tq.Akole, Dist.Ahmednagar
3. The Head Master,
Dr.Babasaheb Ambedkar
Vidyalaya, Kotul, Tq.Akole,
Dist.Ahmednagar
4. The Education Officer (Secondary)
Zilla Parishad, Ahmednagar RESPONDENTS
Mr.M.B.Kolpe, Advocate for petitioner.
Mr.K.M.Suryawanshi, A.G.P. for respondent State.
Mr.R.D.Bhalerao, Advocate for respondent Nos. 1 to 3.
(CORAM : RAVINDRA V.GHUGE, J.)
DATE : 18/12/2013
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( 2 ) Writ Petition No.6092 of 2011
JUDGMENT :
1. Rule. Rule made returnable forthwith. With consent of the parties, the petition is taken up for final hearing.
2. The petitioner, by this petition, assails the judgment dtd.
07/12/2010 delivered by the School Tribunal in Appeal No.43 of 2008.
3. The contentions of the petitioner can be summarized as follows :-
(a) In 1991, the respondent Management has started the Secondary School at Padalane, Tq. Akole, Dist. Ahmednagar. The school was recognized on non grant basis.
(b) In 1995, the respondent Management had transferred the respondent No. 3 School from village Padalane to village Kotul without prior permission of respondent No.4.
(c) The respondent No.4 had cancelled the recognition of the School since the Management had transferred the School without permission.
(d) In 1996, the respondent Management filed Writ Petition No. 99/1996 before this Court challenging the order passed by respondent No. 4 cancelling its recognition. This Court granted ::: Downloaded on - 23/12/2013 20:36:03 ::: ( 3 ) Writ Petition No.6092 of 2011 stay to the impugned order passed by respondent No.4.
(e) The petitioner has passed B.Sc. in the year 1994 in First Class.
Thereafter he has passed B.Ed. in the year 1997 from Nagpur University in First Class.
(f) On 17/07/1997, the petitioner was appointed as Assistant Teacher in respondent No. 3 School on probation for 2 years.
The respondent No. 3 School was unaided having 8th to 10th standard classes.
(g) In 1999, the petitioner had completed the period of probation and was deemed to have become a permanent employee.
(h) On 01/04/2004, the Writ petition No.99/1996 was disposed of by this Court by consent of the parties with the directions to decide the proposal for transfer of school.
(i) In 2005, respondent No.2 sent the proposal of the petitioner along with other employees for approval to respondent No.4.
(j) In 10/04/2008, respondent No.3 has submitted the Inspection report of valuation of the School for considering the issue of grants. The Government after receiving report of inspection sanctioned 100% grants to respondent No. 3 School.
(k) On 15/07/2008, after sanction of grants the Management has terminated services of the petitioner and 9 other employees orally by refusing work / to sign on the muster roll.
(l) No opportunity of hearing was given by the Management.
(m) On 31/07/2008, the petitioner preferred an Appeal U/s 9 of M.E.P.S. Act, 1977 before the learned School Tribunal at Solapur.
(n) On 17/04/2009, the stay application filed below Exh. 5 was ::: Downloaded on - 23/12/2013 20:36:03 ::: ( 4 ) Writ Petition No.6092 of 2011 allowed by the learned School Tribunal whereby oral termination dated 15/07/2008 was stayed till decision of the appeal.
(o) In 2009, the respondent Nos. 1 to 3 have filed writ petition No. 8600/2009 and the group of writ petitions against other employees challenging the orders passed below Exh. 5.
(p) On 01/07/2009, this Court has disposed of Writ Petition No. 8600/2009 and the group of writ petitions by directing learned School Tribunal to decide the matters within three months and parties were directed to maintain status-quo.
4. The petitioner/original appellant contends that he was appointed by an appointment order dated 10/07/1997 w.e.f.
17/07/1997 on probation for a period of 2 years. The appointment order is at page No.27 of the petition paper book clearly evidencing the said fact. Section 5 sub-section 2 of the M.E.P.S.Act, 1977 provides for deemed permanency on completion of 2 years probation if continued thereafter. There can be no dispute so far as this provision is concerned.
5. The respondents, in para no.2, 2(a), 2(b), 2(c) and 2(d) of the written statement have made specific contentions which are at page ::: Downloaded on - 23/12/2013 20:36:03 ::: ( 5 ) Writ Petition No.6092 of 2011 No.67 and 68 of the petition paper book. They read thus :
2. "Assuming but not admitting that, if the appellant herein came to be appointed as Asstt. Teacher w.e.f. 17/07/1997 and the order of the appointment dated 10/07/1997 the advertisement if given in the larger news paper minimum to larger news papers in the district area.
The appellant herein failed to acknowledge to attach the advertisement if given so. It is the mandatory procedure after having published the advertisement in larger papers the constitution of the selection committee would come to effect for selecting the candidates who have faced the interview.
(a) In the instant case it seems that there is no advertisement for filling the post of Asstt. Teacher by the respective management at the relevant and material time.
(b) Furthermore, it seems that there was no constitution of the selection committee for selecting the proper candidates for the post of Asstt. Teacher.
(c) It is pertinent to be noted that, the Sub Rule 2 of Rule 9 of M.E.P.S. Rules 1981 enjoins thus :
"Appointments of teaching staff (other than the Head and Assistant Head) and those of non teaching staff in a school shall be made by the school committee."
In the instant case the appointment order appellant is passed by the Secretary of the Management concerned and the said appointment order dated 10/07/1997 giving ::: Downloaded on - 23/12/2013 20:36:03 ::: ( 6 ) Writ Petition No.6092 of 2011 effect from 17/07/1997 is absolutely bad in law, as ab- initio.
(d) In the aforesaid facts and circumstances above referred clauses (a to c) it is clear that the entry of the appellant herein is back door entry therefore even though the appellant has served more that seventeen years he has not got the permanent status. "
6. The entire issue boils down to whether the School Tribunal has considered the specific pleadings / admissions on the part of the respondent/Management in the above said paragraphs of its written statement, while delivering the impugned judgment.
7. In the light of the pleadings from the written statement of the Management, on the one hand, the respondent / Management admits that the petitioner was working with it for more than 17 years.
On the other hand, it vehemently contends that he still would not be entitled to the status of "permanency" because signature of the Secretary on the appointment order is bogus, there was no advertisement published by the Management, the Head Master was supposed to sign on the appointment order and lastly that the Selection Committee for selecting proper candidates was not formed.
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8. In the light of the pleadings of the respondents, it is clear that it was the respondents' Management which allowed the petitioner to work for 17 years and now contends that the petitioner was never an employee of the Management, that the petitioner should produce the signature of the Head Master on his appointment order, he should produce a copy of the advertisement, he should produce his salary registers and on account of having failed to do so, such appointment is termed as a back door entry.
9. The judgment of the Apex Court in case of Secretary, State of Karnataka and others Vs. Umadevi and others, reported at AIR 2006 SC 1806 relied upon by the Management, has not opened a slaughter house. In fact in the said judgment, the Apex Court has concluded that irregular appointments for periods beyond 10 years should be considered favourably and the Management should come up with a scheme for regularising such irregular appointments owing to the fact that they are not illegal.
10. The Apex Court in para No. 44 of the Umadevi (supra) ::: Downloaded on - 23/12/2013 20:36:03 ::: ( 8 ) Writ Petition No.6092 of 2011 judgment holds as under :-
"One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme." ::: Downloaded on - 23/12/2013 20:36:03 :::
( 9 ) Writ Petition No.6092 of 2011
11. Nowhere in the written statement filed by the respondent/Management before the Tribunal has it been contended that the appellant/petitioner herein was otherwise just not eligible to be appointed as an Assistant Teacher.
12. There are many such cases which have come up for the consideration of this Court. Many managements have taken such a stand while summarily / orally terminating their employees. Careers / lives of teachers are being dealt with in a casual manner by such Management. In the face of an admission in the written statement that the petitioner is working for years, the Management is now attempting to take advantage of its own wrong by contending after 17 years that the appointment order did not carry the signature of the Head Master or that the signature of the Secretary is bogus or that there was no proper selection Committee.
13. Having gone through the impugned judgment, it is clear that the learned Tribunal has failed to deal with the said pleadings of the respondent/Management, which are reproduced here in above.
Submissions that the appointment is irregular and the appointment ::: Downloaded on - 23/12/2013 20:36:03 ::: ( 10 ) Writ Petition No.6092 of 2011 amounts to a back door entry have weighed too much upon the mind of the learned Tribunal despite having concluded in paragraph No. 19 on page No. 141 of the petition paper book that 'There is no doubt, that the Appellant has produced number of documents to show that he has worked with the R/M.' In my view, the impugned judgment on this count alone suffers from a serious legal infirmity and perversity. Such a judgment ought not be sustained and is therefore being quashed and set aside by this order.
14. I quote Benjamin N.Cardozo, Associate Justice of the United States, Supreme Court, "Judges are supposed to use all this power to make sure that justice is done, that at some basic level the verdicts issued in their courts display a certain degree of reasonableness. The Judge, ............ is under a duty, within the limits of his powers of innovation, to maintain a relation between Law and morals, between the precepts of jurisprudence and those of reason and good conscience."
15. Therefore, ends of justice would be met if the matter is relegated back to the School Tribunal for a proper adjudication. The ::: Downloaded on - 23/12/2013 20:36:03 ::: ( 11 ) Writ Petition No.6092 of 2011 Tribunal is expected to go through the pleadings of the rival parties and deal with each contention and even the admissions appearing in the written statement. Appreciation of oral and documentary evidence has paramount importance, which the learned Tribunal should bear in mind.
16. As such, writ petition is allowed. Judgment and order dated 07/12/2010, passed by the learned School Tribunal in Appeal No. 43/2008 is quashed and set aside. Appeal No.43/2008 is relegated back to the School Tribunal for proper adjudication, which shall be decided on its own merits and without being influenced by any observations appearing in this order.
17. Learned Advocate for the petitioner submits that the appellant was protected by way of an interim order by the School Tribunal. The said order came to be modified by the order of this Court dated 01/07/2010 in W.P.No.8744/2009 and a group of writ petitions and status-quo was maintained. Para No. 3 of the said order makes things clear.
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18. Learned Advocate for the petitioner contends that during re-
hearing of the appeal by the learned School Tribunal, the respondents/Management is likely to fill in the post and that would create further complications in the matter. Learned Adv.Mr.Bhalerao for the respondents submits that they are in need of Assistant Teachers and therefore they can not be prevented from recruiting fresh Assistant Teachers. I find such contentions falicious.
19. Nevertheless, the situation can be adequately dealt with. The learned School Tribunal is directed to decide the appeal within a period of six months and preferably by the end of June 2014. Till then, the respondents shall not fill in the post on which the petitioner was earlier working. If filled in, they shall be subject to the outcome of the appeal.
20. With these directions, writ petition is partly allowed. Rule is thus made absolute in the above terms.
( RAVINDRA V.GHUGE, J.) khs/Dec.2013/wp6092-11 ::: Downloaded on - 23/12/2013 20:36:03 :::