Maharashtra Shikshan Sanstha And ... vs State Of Maharashtra Through The ...
2002 Latest Caselaw 774 Bom

JUDGMENT

S.A. Bobde, J.

1. Rule returnable forthwith. Heard by consent.

2. This petition is directed against an order of the School Tribunal dated 28-11-2000. The 1st petitioner - Maharashtra Shikshan Sanstha had started a school, which was granted a provisional recognition by the order dated 14-6-1985 for a period of one year vide order of the same date of the Education Officer, Zilla Parishad, Nagpur. The school was again granted a recognition for a period of one more year, i.e. from 1986 to 1987 vide order dated 23-6-1986. This recognition was further extended by one year from 1-4-1987 to 31-3-1988 vide order dated 8-7-1987 of the Education Officer, Zilla Parishad, Nagpur.

3. It is true that during this period the petitioner appointed respondent No. 3 as a teacher. The order of appointment dated 1-7-1985 appoints the 3rd respondent as a teacher for a period of one year from 1-7-1985 to 30-4-1986. As a matter of fact, the 3rd respondent appears to have continued for another period of two years by the management. However, there is no appointment order appointing the 3rd respondent for a period of two years. Apparently, the continuation was in an ad-hoc manner from year to year, having not shown any appointment order to the contrary.

4. When the 3rd respondent was discontinued from service by the petitioner by the notice dated 5-4-1988, she approached the School Tribunal under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. The learned School Tribunal held that the termination is in contravention of law in view of what it considers to be "non disputed propositions" which are as follows:

(1) The appellant is qualified to be appointed for the post of Asstt. Teacher.

(2) The appellant was appointed as an Asstt. Teacher by the appointment order dated 1-7-1985.

(3) The appellant was terminated by the termination order dated 5-4-1988.

(4) The appellant appeared for the interview held by the respondent No, 2, management on 23-6-1988 but the appellant was not selected.

(5) The appointment of appellant was approved by the Education Officer by letter dated 14-8-1988 at Ex. 31 for the year 1987-88.

The learned Tribunal came to the conclusion that the appointment order dated 1-7-1985 was against a clear and permanent vacancy and (the petitioner) "continued to serve for more than two years". It is not clear what the learned School Tribunal means by the above. However, the Tribunal has taken a view that the appellant's appointment should have been on a probation for a period of two years under the Act but that did not happen.

5. The question before me is, whether the School Tribunal's view is correct.

6. Mr. Dharmadhikari, learned counsel, for the petitioners relied upon a judgment of Supreme Court in Hindustan Education Society and Anr. v. Sk. Kaleem Sk. Gulam Nabi and Ors. - in which the Supreme Court was considering the effect of an appointment order for a period of 11 months from 11-6-1992 to 10-5-1993 in a clear vacancy. The Supreme Court in para 5 has observed as follows :

"In view of the above and the order of appointment, the appointment of the respondent was purely temporary for a limited period. Obviously, the approval given by the competent authority was for that temporary appointment. As regards permanent appointments, they are regulated by Sub-sections (1) and (2) of Section 5 of the Act according to which the Management shall, as soon as possible, fill up, in the manner prescribed, every permanent vacancy in a private school by appointment of a person duly qualified to till in such vacancy. Every person so appointed shall be put on probation for a period of two years subject to the provisions of Sub-sections (4) and (5). He shall, on completion of the probation period of two years, be confirmed."

Having regard to the fact that school was granted recognition from year to year for a period of three years consecutively and having regard to the admitted fact that the approval of 1st respondent was not for more than one year, it is clear that the appointment in question was similar to the one considered by Their Lordships in decision cited supra.

7. Mr. Manohar, learned counsel, for the 3rd respondent submitted that if the managements are allowed to appoint teachers from year to year on a temporary basis, it would defeat the purpose of Section 5(2) of the Act. As a broad proposition, this cannot be disputed. However, each appointment would have to be considered case by case. In the present case, it is clear that the appointment was a temporary appointment for one year. Thereafter, there is no appointment and the 3rd respondent seems to have worked for more than two years with breaks in the summer vacation. Having regard to the fact that the School itself had not been recognized, I find that the appointment cannot be said to be in a permanent and clear vacancy which would attract the provisions of Section 5 of the Act.

8. In fairness, Mr. Manohar, learned counsel for the 3rd respondent, did not dispute that the facts of the present case are covered by the decision of Division Bench of this Court in Mathuradas Mohta College of Science v. R.T. Borkar and Ors., 1997 (2) MH..L.J. 168. In similar situation, the Division Bench presided over by the Chief Justice Shri M.B. Shah, as then he was, has in paragraph 7 observed as under :

"It is further to be noted that the post was of teacher in Botany subject which was not the subject of the respondent No. 1 as the respondent No. 1 is M.Sc. in Zoology and, therefore, it cannot be said that respondent No. 1 was duly qualified for the said post. Apart from this, even assuming that there was a clear vacancy, the order issued was purely temporary and, therefore, not proper order. However, it will be an error to treat the said order as an order under Section 5 of the Act, viz., the order for a period of two years probation. Such legal fiction we do not find anywhere in the Act and the Rules and, therefore, the finding recorded by the Tribunal that the order is covered under Section 5 of the MEPS Act is not correct."

9. In the result, the petition deserves to be allowed. Rule is made absolute in terms of prayer Clause (1).