Judgment lpa360.08
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
LETTERS PATENT APPEAL NO. 360/2008
IN
WRIT PETITION No. 1727/2007.
1. Shri Sant Gajanan Maharaj Bahuuddeshiya
Shikshan Prasarak Mandal, Khaparwada,
through its President, resident of Goyankar
Nagar, Tq. Murtizapur, Dist. Akola.
2. Head Master, Sau. Anusuyabai Sahebrao
Tapare Vidyalaya, Unkhed, Taluka
Murtizapur, Dist. Akola. ....APPELLANTS.
VERSUS
1. Devendra Bhagwani Matode,
Aged about 38 years, Occupation -
Service, resident of Dhanaj (Bu),
Tq. Karanja Lad, Dist. Akola.
2. Education Officer (Secondary)
Zilla Parishad, Akola,
Tq. and District Akola. ....RESPONDENTS
.
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Mr. R.M. Bhangde, Advocate for Appellants.
Mr. A. Parchure with D. Deshpande, Advocates for Respondent No.1.
Ms. R. Kalia, Asstt. Govt. Pleader for Respondent No.2.
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Judgment lpa360.08
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CORAM : B. P. DHARMADHIKARI
AND ROHIT B. DEO, JJ.
Date of Reserving the Judgment : 20.07.2017. Date of Pronouncement : 04.08.2017 JUDGMENT. (Per B.P. Dharmadhikari, J)
Judgment delivered by the learned Single Judge on 08.10.2008 in Writ Petition No.1727/2008, filed by the present appellant, dismissing it is assailed before us. The said Writ Petition was filed by the appellant/employer against the judgment and order dated 12.03.2007 delivered by the Presiding Officer, School Tribunal, Amravati. Present respondent no.1 approached the School Tribunal challenging his termination w.e.f. 17.06.2000. School Tribunal has set aside the oral termination order dated 14.08.2000 retrospectively w.e.f. 17.06.2000, ordered reinstatement of respondent no.1 as Assistant Teacher with continuity of service and back wages.
2. The said direction is stayed by this Court in present Appeal on 27.01.2009. On 26.11.2008, while admitting the Appeal, this Court had ::: Uploaded on - 08/08/2017 ::: Downloaded on - 09/08/2017 02:03:44 ::: Judgment lpa360.08 3 granted interim relief subject to deposit of back wages as awarded by the School Tribunal. The employer deposited an amount of Rs.2,94,000/- on 19.01.2009 and expressed its inability to deposit the balance amount of Rs. 2,58,641/-. This Court on 27.01.2009, extended time to deposit that amount. On 25.03.2009, while passing orders on Civil Application (Z) No. 74/2009, moved by respondent no.1 seeking leave to withdraw the amount of Rs. 2,58,641/-, subject to furnishing security and on condition to deposit that amount back with 8% interest within 12 weeks, if Letters Patent Appeal be allowed, that permission to withdraw was granted. Accordingly Rs. 2,58,641/- is withdrawn by respondent no.1 Assistant Teacher and balance amount is still lying with the registry of this Court.
3. Shri Bhangde, learned Counsel submits that respondent no.1 Assistant Teacher did not possess necessary training qualification and as such had no right to post, therefore, appellants were engaging him on year to year basis. He procured B.Ed. degree in May, 2000 and then claimed that he was orally terminated on 14.08.2000. He is relying upon express stipulation in the appointment order to show that respondent no.1 could not have staked any claim to permanency or appointment on probation because of those orders. By order dated 14.03.2000, he was informed that he would stand relieved on 30.04.2000, and respondent no.1 has acknowledged that ::: Uploaded on - 08/08/2017 ::: Downloaded on - 09/08/2017 02:03:44 ::: Judgment lpa360.08 4 order. Thereafter he did not report for duties. He is relying upon the Full Bench judgment of this Court reported at 2013 (2) Mh.L.J. 713 (Ramkrishna Chauhan .vrs. Seth D.M. High School and others), to substantiate his contentions.
4. Shri A. Parchure with Shri D. Deshpande, learned Counsel for respondent no.1 is relying upon the concurrent findings by the School Tribunal as also by the learned Single Judge to substantiate that on the basis of undertaking given by the appellant, respondent no.1 was allowed to undergo vacation B.Ed. Course from the academic session 1998-99 onwards. He completed that course in March, 2000 and passed the examination and obtained degree on 03.05.2000. The appellant Management therefore was duty bound to act on its undertaking and to permit respondent no.1 - teacher to join back after summer vacation in June, 2000. He points out that the oral termination has taken place on 14.08.2000. He is strongly relying upon the undertaking dated 16.03.1998 submitted by the Headmaster i.e. appellant no.2 in support of his contention. He further states that Section 5 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter referred to as "the MEPS Act" for short) is very clear and said provision has been correctly looked into by the School Tribunal as also by the learned Single Judge. According to him the stand of ::: Uploaded on - 08/08/2017 ::: Downloaded on - 09/08/2017 02:03:44 ::: Judgment lpa360.08 5 management is unsustainable as it not only militates with the undertaking, but, also with the provisions of law.
5. Shri Bhangde, learned counsel in reply arguments has urged that there cannot be a estoppel against law and has relied upon certain judgments. We will refer to those judgments at appropriate juncture, during discussion.
6. Pleadings show that respondent no.1 challenged order of termination dated 14.08.2000, which allegedly put end to his services from 17.06.2000. It is not in dispute that he was untrained graduate teacher. He worked as such from 1994-95 in the academic sessions only. In academic session 1998-99 he was appointed and admitted to Vacation B.Ed. on 16.03.1998. After school reopened on 17.06.2000, he reported for duties, but, was asked to wait. On 14.08.2000 he was orally informed about his termination from 17.06.2000.
7. Provisions of Section 5 of the MEPS Act and the issue whether in the backdrop of the mandate contained therein, the employer can appoint a teacher temporarily, though a permanent vacancy is available, has been looked into by the Full Bench of this Court in the case of Ramkrishna Chauhan (supra). In paragraph no. 28, the controversy has been answered as under :
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Judgment lpa360.08 6 "28. Accordingly, we are inclined to answer the issue in the negative. We hold that it is not open to the School Tribunal to assume as of fact that the appointment made against a clear and permanent vacancy is deemed to be on probation, within the meaning of Section 5[2] of the Act. The School Tribunal cannot disregard the terms and conditions of the letter of appointment, if it expressly provides that the appointment is on temporary basis, for a limited term."
8. It is therefore, apparent that the management can in certain situation appoint a person temporarily. In 2010 (3) Mh.L.J. 666 (Sanjay Lalbahadur Divedi .vrs. Shrikrishna Vyayam Shala and others), learned Single Judge of this Court found that the employee has to establish availability of permanent vacancy and necessary qualification with him as also his selection after proper selection process. Learned Single Judge has also observed that even after acquiring training qualification for permanent selection and appointment on probation, teachers like respondent no.1 has to compete with others.
9. Other Single Judge of this Court in 2010 (4) Mh.L.J. 718 (Vidya Bharti Shikshan Sanstha, Goregaon .vrs. Presiding Officer, Additional School Tribunal, Nagpur and others), has found that there is no obligation ::: Uploaded on - 08/08/2017 ::: Downloaded on - 09/08/2017 02:03:44 ::: Judgment lpa360.08 7 upon the management to absorb an employee who earlier worked with it as untrained teacher and then acquired training qualification. In order to claim right to post, such person must establish that he was selected after proper selection process.
10. In 1999 (II) CLR 1103 ( Y.P. Kulkarni .vrs. Anita Anilkumar Abhand), again this aspect has been reiterated and it is further noted that when the teacher did not hold training qualification, no estoppel can be pleaded against management. There circular dated 05.11.1997 issued by the State Government was relied upon by the teacher to urge that the State Government has extended time for acquiring necessary qualifications. In the light of Full Bench judgment (supra), we need not comment more on this aspect.
11. In (2002) 2 SCC 188 (Sharma Transport .vrs. Government of A.P. and others), in paragraph no.24 the Hon'ble Supreme Court has held that a Government or Public Authority cannot be compelled to perform a promise which is contrary to law.
12. Here it is not the case of respondent no.1 Assistant Teacher that after 17.06.2000, any recruitment process was carried out by his employer and vacancy available for him has been filled in. He claims oral termination ::: Uploaded on - 08/08/2017 ::: Downloaded on - 09/08/2017 02:03:44 ::: Judgment lpa360.08 8 on 14.08.2000, retrospectively from 17.06.2000. He waited till 14.08.2000, as he did not have necessary appointment order, as last appointment expired before summer vacation of the year 2000. When his last appointment order expired, he was not holding necessary qualification. Thus, in absence of proper advertisement and his participation in open competitive selection process, respondent no.1 could not have and cannot claim any right to post. He could not have been reinstated at all.
13. We therefore, quash and set aside the judgment dated 08.10.2008 delivered by the learned Single Judge and allow Writ Petition No.1727/2007.
14. Consequently the amount lying in deposit with the Registry of this Court is allowed to be withdrawn by the appellant Management. The amount already withdrawn by respondent no.1 shall be refunded by him as per directions contained in order dated 25.03.2009.
15. Letters Patent Appeal is accordingly allowed in aforesaid terms, with no order as to costs.
JUDGE JUDGE
Rgd.
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