Pralhad Vitthalrao Bhusari vs New Ideal Education Society And ...
2004 Latest Caselaw 1241 Bom

JUDGMENT

Dharmadhikari B.P., J.

1. By this petition under Article 226 of the Constitution of India the petitioner employee challenges the order of termination issued by respondent No. 1 management terminating him w.e.f. 7-4-1989 and the judgment delivered by School Tribunal on 9th July, 1991 rejecting his appeal. Necessary facts in this respect can be briefly stated as under:

2. The petitioner who is science graduate of Nagpur University came to be appointed as Assistant Teacher (untrained) to teach mathematics by respondent No. 1 Educational Institution by its order dated 29-7-1983. Thereafter orders have been issued to him on yearly basis for academic year 1984-85, 1985-86, 1986-87 and 1987-88 and lastly for academic year 1988-1989. All these appointment orders are delivered in each academic session and in clear vacancy. The Education Officer i.e. respondent No. 3 also granted approval to this appointment every year on early basis. The petitioner, thus, worked with respondent No. 1 from 1983-1989. The petitioner states that respondent No. 1 society runs two schools and the sendees of staff are transferable from one school to another as per provisions of Maharashtra Employees Private Schools (Conditions of Service) Rules, 1981 (for short 'M.E.P.S. Rules). He states that he has worked in both the schools during this period. It is his case that as his service record was clean and unblemished he was sent on deputation as in service candidate to complete his B.Ed. qualification in vacation course held by Janta Shikshan Sanstha, Chandrapur in November, 1987. The petitioner states that he completed the said course in 1987-88 and 1988-89 and appeared for examination of Nagpur University in March, 1989. The result was declared in June, 1989 and he acquired B.Ed. degree in 1989.

3. The petitioner points out that the Government of Maharashtra through its department of Education and Employment Planning issued resolutions on 12th August, 1987 and 28th August, 1990. The teachers in service were required to complete their B.Ed. by 1st June, 1990 and by latter resolution said time limit was extended till July, 1991. The petitioner states that he has secured B.Ed. training qualification within last date stipulated above and his appointment was against the clear permanent vacancy and he was regular employee. He states that he has put in 6 years of continuous service and as such he could not have been terminated by the management by impugned order of termination dated 7th April, 1989. Perusal of the said order reveals that the School Committee has terminated the petitioner on the ground that he is untrained and the Education department has granted approval to his appointment only for academic year 1988-89. Though in this order of termination dated 7-4-1989 it is mentioned that the resolution to that effect has been passed on 6th July, 1989 and he is being terminated from 8th May, 1989, the petitioner states that after obtaining B.Ed. qualification he has submitted B.Ed. certificate to respondent No. 1 and reported for duty on opening date of the academic session 1989-90 on 26-6-1989 in normal course, but he was not permitted to join the duties. Therefore, on 13-7-1989 he filed an appeal under Section 9-A of M.E.P.S. Act before the School Tribunal at Nagpur. He further pointed out that after his termination advertise was published on 29-7-1989 in Newspaper 'Nagpur Patrika' and on 31-7-1999 in Newspaper 'Lokmat' and another untrained person has been appointed to teach mathematics. He further states that respondent Nos. 1 and 2 filed their written statement mentioning therein that the petitioner was untrained employee working for a specific period and his appointment was temporary. It is stated by the respondents that services of the petitioner came to an end automatically at the end of each academic session and as per approval granted by respondent No. 3 Education Officer. It is stated that respondent No. 3 issued letter dated 10-4-1989 and 11-4-1989 to terminate all untrained temporary teachers appointed for one session and accordingly services of petitioners were terminated by order dated 7-4-1989. They have further stated that petitioner should have applied in response to advertisement dated 29-7-1989 or 31-7-1989. As the petitioner did not apply he has not been selected. The School Tribunal after hearing both the sides delivered impugned order and dismissed the appeal filed by the petitioner vide its judgment dated 9th July, 1991. It is this background the petitioner has approached this Court.

4. I have heard Advocate A.R. Patil for the petitioner/teacher. Advocate K.V. Thomas for respondent Nos. 1 and 2 and Mr. T.R. Kankale, A.G.P. for respondent No. 3 Education Officer.

5. After narrating facts, as above, Advocate Patil invites attention of the Court to the provisions of Rule 6 of M.E.P.S. Rules, 1981. He points out that as per second proviso to this rule services of untrained graduate appointed as a teacher after obtaining permission from Education Officer, are to be continued on the condition that he obtains the prescribed training qualifications at his own cost. He points out that initially the time limit for acquiring the said qualification was 1st June, 1987 and it has been extended from time to time and last extension is by the resolution of the State Government dated 28-8-1990 up to July, 1991. He states that at the time of his termination on 7-4-1989, the said time limit was upto 30th June, 1990 and therefore, services of the petitioner could not have been terminated on 07-04-1989.

6. He further points out that after terminating him in August, 1989 the respondent Nos. 1 and 2 have appointed another untrained and inexperienced (fresh) candidate by name Pradeep S. Mathre who was having B.Sc. (Maths) qualification. Therefore, the Counsel for petitioner contends that termination of services of the petitioner from 7-4-1989 is arbitrary and unwarranted and contrary to the Rules. He contends that this aspect has not been considered appropriately by the School Tribunal. He points out that the School Tribunal has in paragraph 7 of its impugned judgment found that he was not deputed for B.Ed. training by respondent Nos. 1 and 2 there are no documents before it to examine, correctness or otherwise of this issue. It is therefore, held that the petitioner joined vacation B.Ed. course without permission and knowledge of the management. The learned Advocate states that the documents in question could not be filed before the School Tribunal but he has annexed those documents alongwith the petition as per permission granted by this Court vide its order dated 28-9-1995 passed upon C.A. No. 2838 of 1992. He points out that first documents in this respect is deputation certificate issued by Head Mistress while second document is letter for employer addressed to the Chairman Shikshak Sahakari Bank Ltd., Nagpur about loan of Rs. 20,000/-applied for by him. The said letter is dated 2nd March, 1989. Third document is Experience Certificate dated 29th March, 1988 and in it the Head Mistress has stated that the petitioner has worked at Girls High School, Umrer as maths teacher from 1-7-1985 to the end of session 1987-88. The document No. 4 is communication dated 25-3-1989 sent by Head Mistress to Shikshak Sahakari Bank, in it the Bank has been requested to sanction loan to the petitioner as per Maharashtra Co-operative Societies Act. The last document is termination order. The learned Counsel for the petitioner states that these documents therefore, show that in March, 1989 his termination was not even contemplated. He further states that the deputation certificate clearly reveals that he was sent by the management for completing B.Ed. Course.

7. As against this Advocate K.V. Thomas appearing for respondent Nos. 1 and 2 states that the petitioner was being continued every year on year to year basis by issuing him fresh appointment order. He states that as there was clear vacancy, the management has stipulated it accordingly in the appointment order. He further states that as the petitioner was untrained, he was appointed for each academic session and the Education Officer also granted approval to his appointment accordingly. He points out that in so far as the date of termination or termination itself is concerned, there is inconsistency in the story of the petitioner. He further states that after his termination as usual at the end of academic session 1988-89, the petitioner should have applied for fresh appointment in response to advertisement published by management in July, 1989. He states that the petitioner voluntarily did not apply and as such he could not be selected. He states that other untrained employees were therefore, required to be selected. He further points out that in subsequent order i.e. 1990-91 another advertisement was issued and they have got trained graduate mathematics teacher now. He therefore, contends that when petitioner did not apply, the School Tribunal is right in not granting him relief of reinstatement. He points out that in view of letter dated 11-4-1989 issued by the Education Officer, services of untrained temporary employees were required to be terminated and accordingly the petitioner was also terminated. About B.Ed. qualification of the petitioner, the said Counsel submits that the School Tribunal has rightly found that the petitioner obtained that qualification privately and he was not forwarded by the management for it. He further states that no interference is called for in the impugned judgment in this writ petition. In so far as the certificate of deputation produced on record by the petitioner is concerned, he contended that the said document was not produced before the School Tribunal and further such document cannot be considered by this Court for the first time here.

8. Having heard both the sides, I find that an employee like petitioner who has been working since 1983 with respondent No. 1 management as untrained Assistant teacher would not suddenly give up employment after obtaining B.Ed. qualification. There is nothing on record to show that each year management was publishing advertisement and each year the petitioner was required to appear for interview and was selected. On the contrary, it appears that the petitioner has obtained B.Ed. qualification in June, 1989 itself. The learned School Tribunal has held that this qualification has been obtained by him without permission and knowledge of the management. The School Tribunal has found that incase, the teacher is deputed by the management for B.Ed. training course the management is required to furnish undertaking that the teacher sent on deputation would not be terminated from service during training period. The School Tribunal has found that the petitioner did not produce any document before it to show that he was deputed for B.Ed. training.

9. The provisions of Rule 6, particularly second proviso clearly reveal that at the relevant time the law had given petitioner time till June, 1990 to obtain B.Ed. qualification. In such circumstances, in April, 1989 management could not have terminated him because of direction given to him by the said second proviso to Rule 6. Letter given by Education Officer in April, 1989 asking the management to terminate all untrained temporary teachers is not produced on record. Still that letter cannot supersede the provisions of this Rule and hence, the action of respondent No. 1 in terminating the services of the petitioner in April, 1989 cannot be held to be prima facie legal and justified. The directions of Education Officer are subsequent to termination order. The issue whether the petitioner obtained B.Ed., qualification as a candidate sent by respondent No. 1 on deputation or has not been answered and could not be answered by the School Tribunal because of absence of documents before the School Tribunal. The said document has been produced by the petitioner before this Court on 28-8-1995 alongwith other documents. This Court has permitted that production and has taken those documents on record. However, in view of the stand of respondent Nos. 1 and 2 about deputation of the petitioner, the disputed question of fact arises in this writ petition. Such a question cannot be answered for the first time by this Court here. It would be therefore, in the fitness of things if the petitioner is permitted to place these documents before the School Tribunal and the School Tribunal is directed to consider their effect on the termination of the petitioner by impugned order dated 7-4-1989. The petitioner ought to have produced these documents before the School Tribunal itself during pendency of the appeal and production of these documents in 1995 before this Court or permission to produce the same before the School Tribunal now will definitely cause some prejudice to the management. It is to be noted that the impugned judgment of the School Tribunal is dated 9-7-1991 while the Civil Application for permission to file these documents on record of the writ petition came to be filed in 1992. Hence, if these documents are not considered by the School Tribunal more serious and severe injury will be caused to the petitioner. If after considering these documents, the School Tribunal again answers issue against the petitioner and dismisses his appeal, no prejudice will be caused to the respondent Nos. 1 and 2 at all. However, if the School Tribunal finds itself inclined to allow the appeal of the petitioner on account of these documents, it may appropriately compensate the respondents by denying proportionate back wages to the petitioner. The School Tribunal is free to adjudge the equity between the parties, if occasion therefore arises. In the interest of justice, the petitioner is permitted to produce documents filed by him before this Court vide C.A. No. 2838 of 1992 before the School Tribunal and for that purpose the matter is remanded back to the School Tribunal for giving appropriate opportunity to the petitioner as also to the respondent in relation to these documents.

The impugned judgment dated 9th July, 1991 delivered by the Presiding Officer, School Tribunal, Nagpur under Appeal No. STN/98 of 1989 is hereby quashed and set aside.

As the termination of petitioner is from April, 1989 and the appeal before the School Tribunal is also of the year 1989 the learned School Tribunal is directed to dispose of the appeal of the petitioner as early as possible and in any case, within a period of six months from the date of receipt of this order by it.

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