Prabhavati Bhaurao Bhivgade vs New Grand Education Society And ...
2004 Latest Caselaw 1265 Bom

JUDGMENT

Dharmadhikari B.P., J.

1. In this petition under Article 226 of Constitution of India, the petitioner/employee challenges the judgment and order dated 31-7-1992 passed by School Tribunal, Nagpur in an appeal under Section 9 of Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, whereby the appeal filed by the petitioner/employee has been dismissed on merits as also on the ground of limitation.

2. Advocate HA Deshpande appearing for the petitioner points out that the petitioner was appointed as an Assistant teacher in July, 1979 to teach primary classes and in 1979 she worked in New Indira Convent School, Buddhanagar, Nagpur and in 1981 - 1982 she was working in Mahatma Gandhi Convent School, Vaishalinagar, Nagpur and in 1983-84, she again worked in New Indira Convent School and after 1984 she was working in Kai. Rajaram Badule Convent, Shende Nagar, Nagpur. She worked in academic sessions 1984-85, 1985-86 and 1986-87. He points out that she was sent on deputation for D.Ed. training in 1985 and she completed D.Ed. in 1986. He points out that earlier her qualifications were SSC with Pre D.Ed. The petitioner was not permitted to join her duties on 5th October, 1987 and, therefore, she made representations and after waiting for result thereof ultimately she filed an appeal before the School Tribunal under Section 9 of the said Act on 2nd December, 1988. As there was delay, a separate application for its condonation was also moved.

3. The appeal was opposed by respondent/management, which pointed out that the services of petitioner were laminated at the end of academic sessions 1986-87 on 30th April, 1987 and she did not work in their school thereafter. The respondent/management has contended that she was working on temporary basis and was not qualified teacher. They have denied that she obtained D.Ed. qualification in 1986. They have stated that the petitioner is not an employee as defined under Section 2(7) of MEPS Act and appeal filed by her was not maintainable as the school itself was not recognised till 1987.

4. The School Tribunal has heard both the sides had thereafter has delivered the impugned order on 31st July, 1992. The School Tribunal found that the delay in filling the appeal cannot be condoned and has further found that the impugned order of termination cannot be interfered with as the school at that time was unrecognised school and, therefore, provisions of MEPS Act and the rules framed thereunder were not applicable and the appeal itself was not maintainable. It, therefore, dismissed the appeal.

5. On the basis of above facts, Advocate Deshpande contends that the School Tribunal has given three reasons for dismissal of his appeal. First being delay; second being that the petitioner was not a trained teacher and the last is that the school was not recognised. He contends-that in so far as question of condonation of delay is concerned, the petitioner was unwell from July, 1987 to October, 1987 and after getting cured, she reported to duties on 5-10-1987. In this connection he points out a representation dated 5-10-1987 made by petitioner to Education Officer, in which it is mentioned that along with doctor certificate, she reported for duties on 1-10-1987 and the Headmistress did not permit the petitioner to join the duties. It appears that taking cognizance of this letter, the Education Officer directed the management to permit the petitioner to join and as the management did not act as per the said direction of Education Officer, on 29-12-1987, the Education Officer again directed the management to permit the petitioner to join on duty and thereafter that otherwise recognition of school will be required to be cancelled. He points out that on 4-2-1988, the Education Officer directed Extension Officer (Education) of Zilla Parishad, Nagpur to go with petitioner in the said school and to see that the management permits her to join. He further points out that on 30th December, 1987, the Headmistress directed the petitioner to remain present on 16-1-1988 in presence of secretary of the society, as the papers about her joining have been forwarded to that secretary. Advocate Deshpande further points out that on 16-1-1988, when the petitioner reported, she was given another communication by which she was informed that the management has sought for some clarification and explanation from the Education Officer and till receipt thereof, no decision on her application for-permission to join duties can be taken. She was informed that after receipt of that clarification from Education Officer, she would be informed in this respect. He contends that after 16-1-1988 the management did not inform anything to the petitioner. He states that, therefore, after waiting up to 2nd December, 1988, the aforesaid appeal came to be filed. He, therefore, contends that the petitioner was prosecuting her remedies and was making representations and the learned School Tribunal therefore ought to have condoned this delay.

6. He further points out that the training qualification, i.e. D.Ed. is obtained by her by appearing in April, 1986 examination and a certificate to that effect has been issued to her on 14-7-1986. He states that therefore during 1986-87 session the petitioner was a trained teacher and, therefore her appointment ought to have been treated as appointment on probation as required by Section 5(2) of MEPS Act and hence she could not have been terminated by the order like the order of termination dated 31-3-1987.

In the alternative, he points out that the main grievance before the School Tribunal was that she was not permitted to join duties on 5th October, 1987 and being a teacher on probation, her services could not have been terminated orally by not permitting the petitioner to join her duties.

7. Lastly he argues that as per normal procedure, application for recognition of school is moved just before the commencement of academic year and in terms of the provisions of Rules 4.1 and 4.2 of Secondary School Code, temporary recognition is granted for first five years and then the case is considered for permanent recognition and permanent recognition is granted. He points out that in this case, the communication forwarded by Education Officer dated 18-1-1987, which states that the school of respondent had been recognised in sessions June, 1987 to April, 1988 is, therefore, doubtful. He contends that the school was recognised since beginning. He further argues that she was initially working in recognised school and as such she ought not to have been transferred in unrecognised school.

8. Advocate Kaptan appearing for the respondent/management states that the School Tribunal gets the jurisdiction only if the school is recognised. He points out that the School Tribunal has recorded a finding of fact that the school was recognised for the first time from June, 1987 to April, 1988 and there is nothing on record to disbelieve that finding. He further states that the services of petitioner were terminated by order in writing dated 31-3-1987 w.e.f. 30th April, 1987 and the petitioner has not produced on record anything to show that the petitioner was in service after 30th April, 1987 or in July, 1987. He states that burden in this respect was squarely on the petitioner and petitioner has failed to discharge it.

9. About delay, the learned Counsel for respondent argues that after termination of her services in April, 1987, petitioner appears to have fabricated some document and has made an attempt to create a show as if her employment continued even after April, 1987. He argues that application of mind by School Tribunal in this respect is just and proper.

10. Having heard both the sides, it is clear that the School Tribunal will get jurisdiction to take cognizance of the appeal only if it is shown that the school is recognised. The management in its reply has specifically pointed out that the school is not recognised. It has further pointed out that the petitioner is not an employee, as required by Section 2(7) of MEPS Act, because she is not working in recognised school. Hence, petitioner ought to have made efforts to bring on record some material to show that she was working in recognized school. The arguments of Advocate Deshpande about provisions of Rules 4.1 and Rule 4.2 of Secondary School Code to interpret the letter of Education Officer dated 18-7-1987 in the light of said Rules, therefore, is hypothetical exercise which has no substratum in so far as the pleadings of appellant/ petitioner are concerned or the documents produced by the petitioner are concerned. It is, therefore, pointed out that this finding recorded by the School Tribunal that the school got recognition for the first time in July, 1987 is, therefore, correct and does not call for any interference in this respect.

11. Advocate for petitioner has stated that services of petitioner were terminated on 5-10-1987, i.e. after June, 1987 and therefore at the time of termination, the petitioner was in a recognised school. In this connection, perusal of appeal memo filed by petitioner before the School Tribunal is important. In the said appeal memo, the petitioner has stated that she approached the respondent No. 3, i.e. Education Officer, on 5-10-1987, requesting him for directing the management to permit her to join duties. In the appeal memo it is not stated that after recovery from her illness, she reported for duties on any specific date and the management did not permit her to join duties. Even in the document dated 5-10-1987 placed on record, she has complained to the Education Officer that on 1-10-1987, she had gone to the management for joining along with fitness certificate of doctor, but she was not permitted to join. It is to be noted that no copy of such medical certificate issued by the doctor, declaring that petitioner is fit to join duties on 1-10-1987, is produced on record, further the joining report dated 1-10-1987 is also not produced on record and in such circumstances, whether there was any termination on 1-10-1987 or not, is a disputed question. The management has produced on record written order of termination dated 31-3-1987, which shows that it has been acknowledged by petitioner and accordingly she has been terminated on 30th April, 1987. Thus, the burden to show after 30th April, 1987 petitioner continued to work in the school was upon the petitioner and she has failed to discharge that burden. Therefore, no fault can be found with the reasoning given by the School Tribunal that at the relevant time the school was not recognised and, therefore, it has no jurisdiction to take cognizance of the appeal.

12. The petitioner has produced before this Court in present writ petition a certificate of training dated 14-7-1986 which shows that she has completed her D.Ed. training in April, 1986. However, such document is not produced on record before the School Tribunal in spite of specific denial by management that petitioner possesses any such qualification. It is, therefore, clear that the School Tribunal could not have considered this qualification of petitioner and it was not possible for School Tribunal to hold that the appointment of petitioner, after June, 1986 was appointment on probation because she had obtained training qualification.

13. The delay explained by petitioner is from February, 1988 December, 1988. It is to be seen that appeal against termination is required to be tried within one month from the date of termination. If the date of termination of petitioner is presumed to be 5-10-1987, then she ought to have filed the appeal on or before 5th November, 1987. Thus, there is delay of about 13 months in approaching the. School Tribunal. The petitioner has stated that from 5-10-1987 till 4-2-1988, she was making representations and there was correspondence by her with management as also with Education Officer. The last letter written by her is dated 16-1-1988 by which the management informed the petitioner that they had sought some clarification from Education Officer and after receipt of that clarification decision on the question of permitting the petitioner to join duties will be taken. It is apparent that no such decision was taken till December, 1988. On 4-2-1988, the Education Officer has directed Extension Officer (Education) of Zilla Parishad to go with petitioner to the school and to see that she is permitted to join duties. However, as argued by learned Counsel for petitioner, the said Extension Officer never came and the petitioner could not go with Extension Officer to the school. Thus, after 4-2-1988, the petitioner could not join.

14. In this background the petitioner has not pointed out as to why and how she waited from February, 1988 to December, 1988. There is absolutely no reason assigned for this delay. The petitioner has waited for more than 10 months and thereafter has approached the School Tribunal and in it also the delay has not been satisfactorily explained. The School Tribunal has, therefore, held that the delay of about 10 months in filing the appeal has not been explained at all. Thus, I do not find anything wrong with this appreciation of material by the learned School Tribunal.

15. Advocate Deshpande at the end argues that if the School Tribunal wanted to dismiss the appeal on the ground of limitation, it was not open to it to consider the merits of the controversy and it should have been left merits untouched. However, it is to be seen that the School Tribunal, after finding that the appeal is time barred, has also recorded a finding on another important issue, i.e. about the maintainability of appeal before as the school was found to be unrecognised. In any case in view of the discussion above, no prejudice has been, caused to the petitioner from such discussion.

16. Therefore, I do not find any merit in this petition. The writ petition is accordingly fails and is dismissed with no order as to costs.