Malanbai D/O Tukaram Satpute vs Deputy Director Of Education And ...
2001 Latest Caselaw 726 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

1. Heard learned Advocates for the parties. Perused the records.

2. The petitioner challenges the judgment and order dated 5-8-1999 passed by the School Tribunal Aurangabad in Appeal No. 138 of 1998.

3. Few facts, relevant for the decision, are that the petitioner was appointed as a Peon in the primary school belonging to the respondent No. 3 by an order dated 8th October, 1994 on probation for 2 years commencing from 10th of October, 1994. His appointment was duly approved by the Education Officer respondent No. 2 and the same was communicated to the school under letter dated 29th January, 1995. By letter dated 22nd February, 1997 the respondent No. 2 informed the school that on account of fall in the number of students in the school, the strength of the staff of the school ought to have been reduced in accordance with the provisions of law and yet the management has failed to take appropriate action in that regard and, therefore, in future it would be the responsibility of the management to pay the salary of the excess staff without any liability of the Government to provide grant-in-aid in respect of the excess staff. Since 30th December, 1997, the petitioner was prohibited from signing muster roll by the respondents Nos. 3 and 4 and, therefore, the petitioner filed the Appeal No. 138/1994 before the School Tribunal in July 1998. Prior to that, he had approached this Court by Writ Petition No. 694 of 1998, however, in view of availability of alternative efficacious remedy to the petitioner, this Court had refused to entertain the said petition by order dated 21-7-1998, while giving liberty to the petitioner to explore the alternative remedy within 30 days therefrom. Accordingly, the said appeal was filed by the petitioner in the School Tribunal. In spite of service of notice of the appeal, the respondents No. 3 and 4 preferred not to contest the appeal though the respondent No. 2-Education Officer, filed his written statement and objected to the grant of relief to the petitioner on the ground that the post of Peon was abolished during the academic year 1995-96 and, therefore, there was no question of petitioner being continued in the services of the respondent No. 3 after abolition of the said post and hence there was no question of confirmation of the petitioner in the services.

4. The Tribunal, while holding that in view of the Circular dated 22-2-1997 the post of the Peon was abolished and therefore the petitioner is not entitled to claim any relief in the matter as asked for, and, therefore, the appeal was dismissed with the direction that the respondents Nos. 2 and 4 to absorb the petitioner in case the strength of the students in the school exceeds 500.

5. While assailing the impugned judgment, the learned Advocate for the petitioner has submitted that by letter dated 8-10-1994, the petitioner having been appointed on probation for a period of 2 years, his appointment having been approved by the Education Officer and accordingly communicated to the management of the school by letter dated 29-1-1995 and the petitioner having completed the said probation period without any adverse remark, or communication of any such adverse remark to the petitioner, or communication from the management about non requirement of the petitioner after expiry of the said probation period, the petitioner is deemed to have been confirmed in the post of Peon with effect from 10th October, 1996 in terms of section 5(2) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. Being so, the services of the petitioner could not be terminated otherwise than resorting to the provisions contained in Rule 26 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. Oral termination being not permissible under the said Act and the Rules made thereunder, the refusal on the part of the respondents No. 3 and 4 to sign the muster roll and failure on their part to release the salary of the petitioner is contrary to the provisions of law applicable to the parties and that the same having been totally ignored by the School Tribunal, the impugned judgment is contrary to the provisions of law and warrants interference by this Court.

6. The learned Assistant Government Pleader, on the other hand, has submitted that in view of the fall in the number of students in the school, there was communication by the Education Officer-respondent No. 2 to the management about the abolition of the post of Peon from the academic year 1995-96 and, therefore, the petitioner cannot be said to have been confirmed in the post being once the post which the petitioner claimed to have been occupying was itself abolished. The learned Advocate appearing for the respondent No. 2 while adopting the submission made by the Assistant Government Pleader, has stated that in view of the specific communication by the Education Officer about the fall in the strength of the students, it was entirely for the management to take appropriate action in the matter for the termination of the services of the petitioner and for the failure on the part of the management, the respondent No. 2 cannot be penalised in relation to the grant of salary.

7. The fact that the petitioner was appointed by letter dated 10th October, 1994 on probation for a period of 2 years commencing from 10th October, 1994 and that her appointment was duly approved by the Education Officer and the communication thereof to the management by letter dated 29th January, 1995 are not in dispute. It is also nobody's case that during the probation period of 2 years the petitioner was at any time informed about any adverse remarks or that her services being not satisfactory or that her services being not required on expiry of the probation period or before the expiry of the said period. Undisputedly there was no notice addressed to the petitioner by the management at any time intimating the petitioner about non requirement of the services in the institution of the respondent No. 3 either during the said period of 2 years or any time thereafter.

8. Section 5(2) of the said Act provides that every person appointed to fill a permanent vacancy shall be on probation for a period of 2 years and subject to the provisions of sub-sections (4) and (5), he shall, on completion of this probation period of two years, be deemed to have been confirmed. Sub-section (3) provides that if in the opinion of the management, the work or behaviour of any probationer during the period of his probation, is not satisfactory, the management may terminate his services at any time during the said period after giving him one month's notice or salary of one month in lieu of notice. Sub-section (4) provides that, if the services of any probationer are terminated under sub-section (3) and he is reappointed by the management in the same school or any other school belonging to it within a period of one year from the date on which his services were terminated, then the period of probation undergone by him previously shall be taken into consideration in calculating the required period of probation for the purpose of sub-section (2). Apparently, therefore, once an employee appointed in a permanent post on probation completes the period of 2 years, he is deemed to have been confirmed in the said post on expiry of such period of 2 years. In case of reduction of number of students or classes or divisions in a school, the management has to follow certain procedure in relation to the permanent staff of such school and the provision in that regard is to be found in Rule 26 of the said Rules. Sub-rule (1) of Rule 26 provides that a permanent employee may be retrenched from service by the management after giving him 3 months notice in a situation where there is reduction in the number of classes or divisions or fall in the number of pupils or closure of course of studies etc. Sub-rule (2) provides that the retrenchment from service under sub-rule (1) shall be subject to certain conditions. Accordingly, firstly the principle of seniority shall ordinarily be observed. Secondly, prior approval of the Education Officer is to be obtained. Thirdly, the employees from aided schools, whose services are proposed to be retrenched shall be absorbed by the Education Officer in the case of Primary and Secondary Schools and the order of absorption of such employees shall be issued by registered post acknowledgment due letter and till they are so absorbed the management shall not be permitted to effect retrenchment on account of any reasons mentioned in sub-rule (1) of Rule 26. In other words, mere fall in number of students or reduction in number of classes cannot automatically result in abolition of permanent post. A permanent employee in a school can be retrenched only on fulfilling conditions laid down in sub-rule (2) of Rule 26 which clearly casts duty upon the Education Officer to insist for continuation of the employee in the school in which he is already employed as permanent employee. The provision regarding method of absorption and the arrangement in that regard, are provided for in Rule 26 as well as in Rule 27. In other words, an employee who is confirmed and, therefore, being a permanent employee cannot be disallowed to sign the muster roll nor he can be denied the salary unless an appropriate procedure for retrenchment of service as provided under Rule 26 is followed.

9. At this stage it is also necessary to refer to Rule 28 of the said Rules. It provides that the services of a temporary employee other than on probation may be terminated by the management at any time without assigning any reason after giving one calendar month's notice or by paying one month's salary (pay and allowances, if any) in lieu of notice. This provision clearly discloses that the services of a temporary employee can be terminated with one month's notice or by paying one month's salary in lieu thereof without assigning any reason. But the said provision would not apply to the employees on probation. On the contrary, in terms of section 5(3), question of termination of probationer could arise only in cases of the opinion of the management being that the work or behaviour of a probationer is not satisfactory. In other words, the services of the probationer can be terminated for certain specified reasons being disclosed in the notice and not otherwise.

10. The learned Assistant Government Pleader and the learned Advocate for the respondent No. 2 have strenuously argued that the services of the petitioner stood automatically terminated on the abolition of the post consequent to the fall of the students in the academic year 1995-96 and, therefore, at no point of time was confirmed employee. The contention is totally devoid of substance and, as already stated above, there is no automatic abolition of permanent post in a school. If a permanent post is occupied by an incumbent and if confirmed in terms of section 5 of the said Act, his services can be interfered with only by following the provisions contained in Rule 26 on account of reduction in the number of classes or fall in the number of students. Being so, by virtue of fall in number of students, that cannot be an automatic abolition of any permanent post of an employee in the primary school. Besides, as already observed above, it is nobody's case that at any point of time the management of the school was not satisfied about the work or behaviour of the petitioner during the period of 2 years or that any action in that regard was taken by the management in terms of the provisions of the said Act or the Rules in relation to the services of the petitioner. Hence, for all purposes the petitioner was a confirmed employee with effect from 10th October, 1996.

11. The finding of the Tribunal that "If the Circular dated 22-2-97 is believed the non teaching staff is dismissed and thereafter there happens no post for the peon" discloses total non application of mind and failure on the part of the Tribunal to consider the provisions of law applicable to the facts of the case. First of all, there is no Circular dated 22-2-1997. It was merely a letter by respondent No. 2 addressed to the management of the school. In view of the statutory provisions contained in section 5 of the said Act read with Rule 26 of the said Rules, no letter of Education Officer can supplement or substitute the provisions of law contained in the said section 5 and the said Rule 26. The statutory provisions are bound to prevail upon any such letters or contents thereof. Being so, no value can be attached to the said finding of the Tribunal based on the letter dated 22-2-1997.

12. It is also an undisputed fact that the petitioner has not been paid his salary since 1st October, 1996 onwards. Needless to say that in case of reinstatement, the petitioner would be entitled for the said salary in accordance with the provisions of law.

13. In the result, therefore, the petition succeeds. The impugned order is hereby quashed and set aside. The petitioner stands reinstated in the services of the respondent No. 3 with effect from 30th December, 1997 will all consequential purposes including the salary with effect from 1-10-1996 onwards. In case of fall in the strength of students in the respondent No. 3, the respondents are directed to comply with the provisions of law contained in Rule 26 of the said Rules. All the arrears payable to the petitioner shall be paid within a period of three months from today. The respondent No. 2 is directed to file an affidavit of compliance of these directions within 15 days from the expiry of the period of three months from today in the office of the Additional Registrar of this Court.

14. Rule is made absolute in the above terms, with no order as to costs.