Bhaskar Bhimrao Atalkar vs Janta Education Society Through ...
2004 Latest Caselaw 239 Bom

JUDGMENT

S.T. Kharche, J.

1. By invoking the writ jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, the petitioner/employee has challenged the order dated 6.7.1991 passed by the School Tribunal rejecting the appeal of the employee holding that his termination was legal as per the provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short the M.E.P.S. Act).

2. Relevant facts are as under :

The petitioner was appointed as assistant teacher in the respondents' school by virtue of the appointment order dated 26.10.1987. The employee joined the secondary school as assistant teacher on 2.11.1987. The appointment was temporary for the period of one year commencing 31.10.1987 to 30.10.1 988 and with an option that the appointment would be continued for one year on probation. The employee continued to work in the school even after 30.10.1988 and the Education Officer/respondent No. 5 accorded approval to the appointment of the employee by his letter dated 10.8.1988 by which the appointment was approved till the end of the academic session which ended on 30.4.1988. The services of the petitioner were terminated with effect from 25.4.1988. This termination was challenged by the petitioner before the School Tribunal by preferring an appeal, which came to be dismissed on 6.7.1991 holding that the appointment order of the petitioner itself was illegal and the respondent No. 4. another employee, was clearly absorbed in his vacancy in the Secondary School in accordance with the provisions of the Act. This is how the petitioner is before this Court.

3. Mr. Kothale, learned Counsel, for the petitioner contended that the petitioner was appointed on probation by virtue of the appointment order dated 26.10.1987 which is signed by the President of the respondent/ school, to whom the powers were delegated by the General Body in the meeting held on 26.8.1981 and also the agreement was reduced into writing between the two Presidents of the Schools, i.e. President, Janta Education Society, Chousala, as well as the President, School Committee, Smt. Kesharbai Khandelwal. The learned Counsel for the petitioner therefore contended that the President of the School had authority to appoint the petitioner/employee in the secondary school on probation in a clear and permanent vacancy and, therefore, his appointment was quite legal and valid. In support of this submission, he relied on the decision of Division Bench of this Court in Dnyan Vikas Mandal v. Parashram s/o Laxman Lokhande and Ors. 1991 MH.L.J. 830.

4. The learned Counsel further contended that the School Committee was in existence as per Sub-clause (2)(a) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (for short the Rules) and that the School Committee is empowered to make appointments in view of the provisions of Sub-clause (c) of Clause 3 of Schedule A. He further contended that as per the definition of the management appearing in Section 2(12)(c) of the M.E.P.S. Act the "management" in relation to a school means (a) in the case of a school administered by the State Government; (b) in the case of a school administered by local authority that local authority; and (c) in any other case, the person or body of persons, whether incorporated or not and by whatever name called, administering such school. He, therefore, contended that the functions of the management were delegated by the School Committee to the President, who has issued the appointment order dated 26.10.1987 and, therefore, the appointment of the petitioner is quite legal and valid. He contended that the petitioner was eligible for appointment as he holds the requisite qualification, i.e. M.A., B.Ed. He contended that the termination of the petitioner was ex fade illegal and moreover the School Tribunal has ignored the various provisions of the M.E.P.S. Act and erroneously recorded the finding that the appointment of the petitioner was illegal. He, therefore, contended that the impugned order passed by the School Tribunal cannot be sustained in law and deserves to be set aside and the petitioner be reinstated with continuity in service with back wages.

5. The learned Assistant Government Pleader for respondent No. 5/ Education Officer contended that the petitioner was appointed for a period of one year and he continued in service up to the date of termination, but his appointment was not in accordance with the provisions of the M.E.P.S. Act and Rules. He contended that an employee can be appointed on probation for two years in view of Sub-section (2) of Section 5 of the M.E.P.S. Act, whereas in the present case, the appointment order indicates that the appointment was for a limited period of one year only. He contended that the appointment of the petitioner was purely temporary and cannot be said to be a permanent appointment in view of the provisions of Sub-section (1) and (2) of Section 5 of the M.E.P.S. Act. He contended that the petitioner was served with one month's notice and then his services being purely temporary were terminated with effect from 25.4.1988, and. therefore, the impugned order passed by the -School Tribunal is perfectly legal and correct and no interference into the same is warranted. The learned A.G.P. further contended that the point in issue in the present case is squarely covered by the decision of the Supreme Court in the case of Hindustan Education Society and Anr. v. Sk. Kalim Sk. Gulam Nabi. .

6. I have given thoughtful consideration to the contentions canvassed by the learned Counsel for the parties. It is not in dispute that the petitioner was appointed in the respondent's school by appointment order dated 26.10.1987. The appointment order would indicate that the petitioner was appointed as assistant teacher in the pay scale of Rs. 365-760 from the date he assumed the charge and was also entitled to all allowances as admissible as per rules. The appointment order further indicates that the appointment was purely temporary from 31.10.1987 to 30.10.1988 and it was stipulated that the services would come to an end without notice after completion of the said period. Some option clause is also there in the appointment order wherein it has been mentioned that the appointment was for the period of one year on probation and the services of the petitioner would be governed by the provisions of the M.E.P.S. Act and Rules.

7. It is not disputed that in consequence of this appointment order, the petitioner joined on 2.11.1987 and he was allowed to continue in service till 25.4.1988, on which date his services were terminated. It is also not in dispute that the Education Officer vide letter dated 10.8.1988 accorded approval to the temporary appointment of the petitioner till the end of the academic session, i.e. up to 30.4.1988.

8. It is also not disputed that the appointment order was signed by the President of Respondent No. 1. But in absence of specific decision of the School Committee to appoint the petitioner in accordance with the provisions of M.E.P.S. Act, it is not possible to accept that the President of respondent No. 1 was authorised and empowered to make such appointment. At this juncture, it is necessary to reproduce Sub-clauses (1) and (2) of Schedule A of the Rules. It contemplates as under :

1. (a) Every school shall have a School Committee which will be responsible to Government for the management of the School. There shall be different School Committees for (i) Primary School, (ii) Secondary School including Higher Secondary Class, if any, (iii) Junior College section attached to Senior College and (iv) Junior College of Education.

(b) A Society or Trust conducting more than one school shall have a Coordination Committee for all the schools conducted by the Society or Trust or for a group of schools of Society or Trust in addition to the School Committee of each such school.

The decisions of the School Committee in regard to its various functions shall be subject to ratification by the Co-ordination Committee.

The Sub-clause (2) contemplates as under :

[The School Committee shall consists of -

(a) Four representatives of the Management consisting of the President of the governing body or his nominee and three members nominated by the governing body. The President of the governing body or his nominee shall be the Chairman of the Committee.

(b) One member from amongst the permanent teachers from the same school only in order of seniority by annual rotation;]

[and one member from amongst the non teaching staff from the same school only in order of seniority and by categorywise annual rotation.

Illustration - Librarian, if any, during the first year. Senior-most Clerk during the second year. Laboratory Assistant, if any. during the third year. Senior most member of the Lower Grade staff during the fourth year. Then again Clerk next in order of seniority during the fifth year and son.)

(c) The Head of the School, who shall be ex office Secretary of the School Committee, shall be responsible to keep a record of the proceedings of the Committee's meeting :

Provided, that in the case of a school run by a Trust which is registered as public trust the four representatives referred to in Clause (a) shall consist of four founder members, if there are such members available. If there is one or more but less than four such founder members the three or other requisite member or members shall be nominated by the founder members so as to make the total number of members four on the School Committee for such school :

Provided further that, the President of the governing body shall have the right to change his nominee after completion of one year. Similarly, the governing body shall have the right to change one or more of its nominees after completion of one year.

9. As per Sub-clause (c) of Clause (3) of Schedule 'A' there is no dispute that it is one of the functions of the School Committee to make appointment of employees other than the Head of the School. In the present case, the appointment order is signed by the President but even though the powers have been delegated to him by executing some Kararnama and by passing a resolution of general nature in the general body meeting dated 26.8.1981, it is not possible to accept that the appointment of the petitioner/employee was by the School Committee and management in view of Sub-section (c) of Section 2(12) read with Sub-sections (1) and (2) of Section 5 of the M.E.P.S. Act.

10. Section 5 of the M.E.P.S. Act reads thus :

Certain obligations of Management of private schools.- (1) The Management shall, as soon as possible, fill in, in the manner prescribed, every permanent vacancy in a private school by the appointment of a person duly qualified to fill such vacancy :

(Provided that unless such vacancy is to be filled in by promotion, the Management shall, before proceeding to fill such vacancy, ascertain from the Educational Inspector, Greater Bombay, (the Education Officer, Zilla Parishad or, as the case may be, the Director or the officer designated by the Director in respect of schools imparting technical, vocational, art or special education,] whether there is any suitable person available on the list of surplus persons maintained by him, for absorption in other schools; and in the event of such person being available, the Management shall appoint that person in such vacancy.]

(2) Every person appointed to fill a permanent vacancy shall be on probation for a period of two years. Subject to the provisions of Sub-sections (3) and (4), he shall, on completion of this probation period of two years, be deemed to have been confirmed.

(3) 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 lieu of notice.]

(4) 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 purposes of Sub-section (2).

(4A) Nothing in Mib-s. (2). (3) or (4) shall apply to a person appointed to fill a permanent vacuum by promotion or by absorption as provided under the proviso to Sub-section

(5) The Management may fill in every temporary vacancy by appointing a person duly qualified to fill such vacancy. The order of appointment shall be drawn up in the form prescribed in that behalf, and shall state the period of appointment of such person.

11. Plain reading of the aforesaid provision would reveal that Sub-section (5) of Section 5 of the M.E.P.S. Act empowers the Management to fill in every temporary vacancy by appointing a person duly qualified to fill such vacancy and the order of appointment shall be drawn up in the form prescribed in that behalf, and shall state the period of appointment of such person. In the present case, the appointment order is drawn in the prescribed form which clearly indicates that the appointment was for a fixed period, i.e. from 31.10.1987 to 30.10.1988 and one more clause is mentioned that the appointment would be on probation for a period of one year. This was obviously in contravention of Sub-section (2) of Section 5 which contemplates that every appointment to fill a permanent vacancy shall be on probation for a period of two years. In such a situation, it appears that the petitioner was allowed to continue in the temporary service till 25.4.1988 and the employee was yet to complete the period of two years by that time and, therefore, it is not possible to accept that his appointment was regular and permanent appointment.

12. In Hindustan Education Society (cited supra), it has been held "that the appointments in private schools are regulated and controlled by the provisions of the Maharashtra Employees of Private School (Conditions of Service) Regulation Act, 1977. Where the appointment letter states that the appointment of a candidate in clear vacancy is purely temporary for a period of 11 months, his appointment has to be taken as purely temporary for a limited period and his appointment cannot be considered to be a permanent appointment. Therefore, he cannot be treated as a regularly appointed employee. The Supreme Court specifically observed in para 5 of the judgment that "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 fill 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 of period of two years, be confirmed." In these circumstances, the Supreme Court held that the employee in that case cannot be considered to be a permanent employee.

13. This decision of the Supreme Court squarely applies to the present case because the letter of appointment would clearly show that the petitioner was appointed purely on temporary basis for a fixed period from 31.10.1987 to 30.10.1988. Simply because he is allowed to continue in service till the end of the academic session of 1988, it did not follow that he was appointed permanently. Though it is mentioned that his appointment was on probation for a period of one year, it cannot be said that this appointment letter is legal and valid in view of the provisions of Sub-clauses (1) and (2) of Section 5 of the M.E.P.S. Act. In that view of the matter, this Court is of the considered opinion that there is no error of law or illegality in the order passed by the School Tribunal and no case been made out for interference into the same. The petition is, therefore, dismissed with no order as to costs. Rule is discharged.

14. Mr. Kothale, learned Counsel, for the petitioner made a request that this Court while admitting this petition had granted status quo and, therefore, the same may be continued for a period of one month more. His request is accepted.