Uday Bajirao Khairmode vs Chairman, N.B. Education Society ...
2002 Latest Caselaw 1250 Bom

ORDER

D.Y. Chandrachud, J.

1. Rule, returnable forthwith. Learned counsel for the respondents waives service. By consent taken up for hearing and final disposal.

2. The fifth respondent was appointed as a Shikshan Sevak on 30th June, 2000. The order of appointment states that the appointment was for the period from 1st July, 2000 until 30th April, 2001. However, the order of appointment thereafter provides in Clause 5 that upon the completion of satisfactory service of three years, the fifth respondent would be eligible for being appointed on a regular basis as an Assistant teacher in the regular pay scale. In Clause 7, the appointment order has provided that the remuneration that would be paid to the fifth respondent would be at the rate of Rs. 4,000/- per month. Clauses 5 and 7 are relevant because the order of appointment states that it has been issued in pursuance of a Government Resolution dated 13th October, 2000 of the State Government. On first reading, it would not appear to be conceivable that an order of appointment dated 30th June, 2000 would be issued in pursuance of a G. R. which was issued only thereafter on 13th October, 2000. However, what has transpired is that an earlier G. R. of the State Government dated 27th April, 2000 in the matter of framing a scheme for appointment of Shikshan Sevaks was challenged before this Court in proceedings under Article 226. A Division Bench of this Court, by its order dated 16th August, 2000, admitted a batch of writ petitions. As and by way of an interim order, the Court recorded that the State Government had agreed to modify the earlier G. R. in terms of the suggestion which was made by the Division Bench. In pursuance of this order a new G. R. dated 13th October, 2000 came to be issued which superseded the earlier G. R. dated 27th April, 2000. In the meantime, the fifth respondent had been appointed with effect from 1st July, 2000 and in pursuance thereof an undertaking was furnished by the teacher on 1st July, 2000. Ultimately, the order of appointment that was issued was dated 30th June, 2000. However, it was obviously issued after the fresh G. R. dated 13th October, 2000 since the terms and conditions of appointment are referable to the subsequent G. R.

3. Under the earlier G. R. that was issued by the State Government on 27th April, 2000, it had been provided that the appointment of Shikshan Sevaks shall be made each academic year for the period from June to April. After the Shikshan Sevak had rendered satisfactory service over a period of five years, she or he was liable to be absorbed as a regular assistant teacher.

4. In the subsequent G. R. which has been issued by the State Government on 13th October, 2000, it has now been provided that the appointment of a Shikshan Sevak would be for a period of three years; that an assessment would be made of the performance of the teacher concerned and that after the satisfactory completion of service over a period of three years or 30 months, she or he would be absorbed as an assistant teacher in the regular pay scale.

5. In the present case, the fifth respondent was appointed in pursuance of the subsequent G. R. dated 13th October, 2000 and though his order of appointment stated in Clause 1 that it was for the period from 1st July, 2000 till 30th April, 2001, Clause 5 of the letter of appointment clearly stipulated that upon the completion of satisfactory service of three years, the fifth respondent was entitled to be absorbed in the regular pay scale. The facts in the present case are that after 30th April, 2001, the fifth respondent was not continued in service by the management and on 24th May, 2001, a fresh advertisement was issued in response to which both the petitioner and the fifth respondent submitted applications for appointment. On 9th June, 2001, the petitioner came to be appointed for a period of three years to be effective from 11th June, 2001 until 30th April, 2004. After having unsuccessfully participated in the fresh selection process, on 24th October, 2001, the fifth respondent submitted an appeal to the Grievance Committee challenging the order of termination. The grievance of the petitioner and of the management which has filed companion writ Petition No. 6685 of 2002 is that the fifth respondent did not initially disclose before the Grievance Committee, the subsequent developments which had taken place including the fact that the fifth respondent had applied in pursuance of the fresh advertisement, but had not been selected. Be that as it may, the Grievance Committee has by its impugned order dated 30th October, 2002 allowed the appeal preferred by the fifth respondent and directed the management to reinstate the fifth respondent as Shikshan Sevak and to pay him an honorarium of Rs. 4,000/- per month. The Grievance Committee has also directed that the services of the petitioner herein shall stand terminated from, 31st October, 2002.

6. In Suneeta Aggarwal v. State of Haryana, the Supreme Court held that once an employee of an education institution has appeared at a fresh selection after the post was readvertised, without protest, his conduct in applying afresh would estop him from challenging the original order

of termination. In the circumstances, it was held that such an employee would not be entitled to any discretionary relief.

7. In the present case, it is abundantly clear that the fifth respondent had been employed as a Shikshan Sevak and the terms of appointment were in accordance with the subsequent G. R. dated 13th October, 2000. Though his initial engagement was before the G. R. dated 13th October, 2000 was brought into force, the letter of appointment which was obviously issued subsequently specifically provides that it was issued under the terms of the subsequent G. R. The terms and conditions were as stipulated in the G. R. dated 13th October, 2000 which was issued after the interim order of the Division Bench of this Court dated 16th August, 2000 in Writ Petition No. 2940 of 2000, Bombay Suburban Secondary School Teachers Association v. Secretary Samarth Education Society and other companion matters. The fifth respondent had, therefore, a legitimate expectation that he would be continued in service until the expiry of the period of three years subject of course to earlier termination if his service was not found satisfactory during the period of his initial engagement. The services of the fifth respondent were discontinued at the end of the first academic year. The fifth respondent thereafter participated in the fresh process of selection that was initiated by the management in June 2001 and it was only in October 2001 when he was not selected that he chose to challenge the order of termination that had been passed against him. In a case such as the present, even if the termination of the fifth respondent is held to be invalid, the consequence would be that the fifth respondent would be entitled to continue for the remaining period of his appointment as a Shikshan Sevak subject to the right of the management to assess his performance. The issue as regards the assessment of the performance of the fifth respondent assumes some significance in the facts of the present case, because in the companion Writ Petition that has been filed by the management reliance has been placed on the answers furnished by the fifth respondent in a test which was conducted by the management pursuance to the fresh advertisement which was issued in the month of June 2001. All candidates were, inter alia, required to write a sample letter to the editor of a newspaper about the earthquake in the State of Gujarat and the answer which has been furnished by the fifth respondent is annexed at Exh.F to the companion Petition. The Court is informed that this was produced on the record of the Grievance Committee. The fifth respondent is a teacher of English and having perused the quality of what was written by the fifth respondent it is impossible for the Court to even prima facie come to the conclusion that the fifth respondent is in a position to teach that subject. The presentation of the fifth respondent betrays a lack of even an elementary knowledge of English. No purpose will be served by requiring the management to assess the fifth respondent because it is impossible to come to any conclusion other than that the fifth respondent has no ability in the language which he was appointed to teach. Justice to a teacher is one thing, but that cannot be at the cost of grave injustice to the students. The implementation of the Report of the Grievance Committee will only result in foisting a candidate who will be unable to discharge the solemn duty and obligation of imparting education to the students. Even at the highest having regard to the facts and circumstances of the present 'case, the only appropriate order that could be passed, assuming that the

fifth respondent is correct in the submissions which have been urged as regards the legality of the order of termination would be to direct that the management conduct a review in accordance with law about the performance of the fifth respondent and to pay him his salary in the meantime. The learned counsel appearing on behalf of the management has in fact fairly stated that the management, without admitting the correctness of the allegations of the fifth respondent is ready and willing to pay to the fifth respondent his salary in accordance with G. R. dated 13th October, 2000, for the remaining part of the tenure. This statement on the part of the management is fair. The learned counsel for the management has stated before the Court that the aforesaid payment will be made within a period of six weeks from today. In the circumstances, I am of the view that in the facts and circumstances of the present case, the impugned order of the Grievance Committee has to be set aside. The order dated 30th October, 2002 is accordingly quashed and set aside. In terms of the statement which has been made before the Court by the management, there shall be a direction that the first respondent shall, within a period of six weeks from today, pay to the fifth respondent the salary for the remaining period of his tenure as Shikshan Sevak under the G. R. dated 13th October, 2000. It has been agreed that the salary shall be paid for a period of 20 months.

The Writ Petition shall stand disposed of in the aforesaid terms.

No costs.

Parties to act on a copy of this order duly authenticated by Sheristedar/P.A.

of this Court.