Bombay High Court

Matoshri Ramabai Ambedkar vs Mr.Bharat D. Hambir & Anr on 19 December, 2008

Bench: Dr. D.Y. Chandrachud

                                                   1

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                       
                             CIVIL APPELLATE JURISDICTION




                                                               
                              WRIT PETITION NO.6197 OF 2008




                                                              
    Matoshri Ramabai Ambedkar
    Vidyarthi Vasatigruh Trust & Anr.               ...Petitioners.
                   Vs.
    Mr.Bharat D. Hambir & Anr.            ...Respondents.




                                                      
                        ....
    Mr. Balasaheb Deshmukh for the Petitioners.
                                         
    Mr. N.V. Bandiwadekar for Respondent No.1.
    Mr.S. K. Chinchlikkar, AGP for Respondent No.2.
                        .....
                                        
                                  CORAM : DR. D.Y.CHANDRACHUD, J.

December 19, 2008.

ORAL JUDGMENT :

The Petitioners conduct a post basic Ashram School for

Secondary School Standards, namely Standards VIII to X. The

School Tribunal held by its order dated 26th March 2008 that the

action of the Petitioners in preventing the Respondent from signing

the Muster Roll with effect from 8th September 2007 was illegal and

issued a direction that the Respondent should be reinstated with

consequential benefits.

2. When the petition came up for admission on 10th October

2008, the submission that was urged before the Court was that in

view of the provisions of Section 2(21) of the Maharashtra Employees

of Private Schools (Conditions of Service) Regulation Act, 1977 and

the judgments of Learned Single Judges of this Court in Dr.Narendra

Bhiwapaurkar Andha Vidyala vs. Shoba Laxman Pachkawade,

2004(1) Mh. L.J. 18 and St.Francis Industrial Training Institute vs.

P.J. Jose, 2007 (1) Mh. L.J. 570, the School Tribunal had no

jurisdiction, inasmuch as the Petitioner-Institute was not recognized

either by the Director of Education, the State Board or the Divisional

Board and it was hence not a "private school" within the meaning of

the Act. An appeal under Section 9 can only lie at the behest of an

employee of 'private school'. Though in the Written Statement filed

in reply to the Memo of Appeal, the jurisdiction of the School Tribunal

was not questioned, the issue has been considered since it goes to

the root of the jurisdiction of the School Tribunal.

3. The question before the Court is not res integra, and is

governed by the judgment of a Full Bench in Suryakant Sheshrao

Panchal vs. Vasantrao Naik Vimukta Jati Bhatakya Jamati Aadarsh

Prasarak Mandal, 2002(5) Bom.C.R. 95. Before enunciating the law

laid down by the Full Bench, it must be noted that an appeal under

Section 9 is maintainable at the behest of an employee of a private

school who is dismissed, removed, terminated, reduced in rank or

superseded by the management. The expression "private school" is

defined by Section 2(20) to mean a recognized school established or

administered by a management, other than the Government or a local

authority. Section 2(21) defines the expression "recognized" to mean

"recognized by the Director, the Divisional Board or the State Board,

or by any officer authorised by him or by any of such Boards". The

"Divisional Board" and the "State Board" are defined in Sections 2(6A)

and 2(25). These Boards are established under the Maharashtra

Secondary and Higher Secondary Education Boards Act, 1965.

These definitions establish that in order to be a private school, a

school must be conducted by a private management and must be

recognized by one of the authorities or Boards. In Suryakant

Panchal's case, the Full Bench held that while a Primary Ashram

School is not recognized by one of the stipulated authorities, a post-

basic Ashram School from Standards VIII to X would be amenable to

the jurisdiction of the School Tribunal under Section 9 since it would

obviously be recognized by the "State Board" as defined in Section 2

(25) of the Maharashtra Employees of Private Schools (Conditions of

Service) Regulation Act, 1977. The Full Bench summarized the

position as follows:

"Secondary or Higher Secondary Ashram Schools or Blind

Schools are "private schools" within the meaning of section 2(20) of the MEPS Act and any employee of such a school

has a remedy of an appeal under section 9 of the said Act."

4. In the present case, it has not been disputed before the

Court by Counsel appearing on behalf of the Petitioners that the

Second Petitioner is (i) A Post-Basic Ashram School teaching

Secondary students from Standards from VIII to X; and (ii) Students of

the school are accepted by the Divisional Board for the Board

Examination. In view of the decision of the Full Bench, an employee

of such a school, namely, a Post Basic Ashram School imparting

eduction to students of Standards VIII to X would be entitled to move

the Tribunal under Section 9 of the Act.

5. As already noted earlier, the only point that was urged at

the initial stage was in regard to the jurisdiction of the School.

However, Learned Counsel has also submitted that the order of the

School Tribunal would require interference of this Court in the

supervisory jurisdiction. Firstly, it was submitted that the First

Respondent was not appointed on probation, but was a temporary

employee. The School Tribunal has noted that in the present case,

the First Respondent was appointed after an advertisement was

issued on 19th April 2004 and interviews were held on 7th June 2004.

The First Respondent was appointed with effect from 14th June 2004

as an Assistant Teacher. The First Respondent is a duly qualified

teacher holding the B.A. and B.Ed. qualifications. The appointment of

the First Respondent was approved by the Social Welfare Officer on a

probationary basis. In fact, it was the contention of the Petitioners

that the work of the First Respondent during the period of probation

was not satisfactory. This aspect would be dealt with later. However,

it is evident that even the Petitioners accepted and treated the

appointment of the First Respondent as being on probation. The law

in this regard is clear. Section 5 of the Maharashtra Employees of

Private Schools (Conditions of Service) Regulation Act, 1977

obligates every management of a private school to fill up a permanent

vacancy by appointment of a duly qualified candidate to fill such

vacancy and under sub-section (2) of Section 5, every person

appointed to fill a permanent vacancy shall be on probation for a

period of two years. Upon the satisfactory completion of the period of

probation, there is a deeming fiction under the statute by which an

employee is deemed to have been confirmed. A permanent vacancy

has to be filled in by the appointment of a duly qualified candidate

and every candidate appointed to fill a permanent vacancy has to be

appointed on probation.

5A. Of late, there is a growing tendency of managements of

private schools to appoint temporary employees from year to year,

even though the vacancy is permanent and an adequate work load is

available. This leads to grave uncertainty for teachers and places

them at the mercy of the managements. The temporary appointment

of a teacher who questions unethical practices of the management is

promptly terminated. He or she who questions is cast away. Those

who turn a blind eye or worse, become willing participants in a pattern

of exploitation, are retained. This is a perversion of what was

intended by the state legislation enacted in 1977. Placing teachers in

a state of eternal uncertainty is destructive of the cause of education.

In numerous cases before this Court, the grievance is that teachers of

aided institutions are being subjected to extortionate demands by

unscrupulous managements. Education has become a business and

managements of private schools, with notable exceptions, are

becoming pirates in the high seas of education. The interpretation of

Section 5 of the Act must be purposive - one that would attain the

statutory object and not lead to a negation of statutory intent. Once a

permanent vacancy arises, a management is duty bound statutorily to fill it

up by appointing a duly qualified candidate on probation. The

vacancy must be advertised to allow equal opportunity to eligible

candidates. A regular process of selection must be held. A duly

qualified candidate has to be appointed. Temporary appointments

can by definition be made when the vacancy is temporary. In such

cases, the exigencies of education require that students must be

imparted education and a vacancy even for a short period will cause

serious hardship. But temporary appointments are an exception.

Making temporary appointments the rule is to give a tool of

subversion to the hands of unethical managements. Temporary

appointments, followed as a practice become a tool of subversion

because they perpetuate a regime of uncertainty about service, place

the teacher in a position of perpetual fear and deprive the teacher of

the stability needed to contribute to the process of moulding young

minds. This Court must emphasise with all the authority at its

command that a subversion of statutory intent should not be allowed.

The Court will not allow itself to be a mute by stander to the growing

trend of a lack of ethics in the management of private schools.

Judicial intervention is warranted in order to preserve the statutory

intent.

6. The position of the law which I have formulated finds

elaboration in Mr.Justice R.M.S. Khandeparkar's judgment in

President, Mahila Mandal Sinnar vs. Sunita Bansidhar Patole, 2007

(2) Mh. L.J. 105 thus :

"Merely because the management chooses to issue appointment orders every year, the appointment of the respondent ipso facto cannot become a temporary one. The Management is bound by the provisions of law

comprised under MEPS Act in relation to the appointments of teachers. Once it is not in dispute that vacancy which

was filled by the appointment of the respondent was a permanent vacancy, as such appointment was after

following the procedure prescribed for appointing a person in permanent vacancy irrespective of the appointment letters being issued every year, the appointment of the respondent has to be construed as under Section 5(1) of

the Act."

7. In the present case, the management cannot take

advantage of the fact that it issued a yearly appointment on a

temporary basis initially. The appointment was made after following

the requisite procedure for selection, namely, after the issuance of an

advertisement and holding of interviews. The First Respondent was

a duly qualified candidate. As already noted earlier, the management

itself treated the appointment as one on probation. The services of

the First Respondent were not discontinued within the period of two

years on the ground that they were unsatisfactory. Upon the

completion of two years' service, the First Respondent became a

permanent employee as contemplated by the provisions of Section 5

(2) of the Act.

8. The second contention that has been urged is that it was

not the case of the management at all that the services of the First

Respondent were terminated and in fact, it was the First Respondent

who had stopped attending the duties after signing the Muster on 5th

September 2007. The Maharashtra Employees of Private Schools

(Conditions of Service) Rules, 1981 make a provision for such an

eventuality. Rule 16(3) provides as follows :

"16(3) In the case of a permanent employee who, without sufficient cause, fails to apply for leave within 7 days from the date of absence, it shall be treated as breach of

discipline and he shall be liable for suitable disciplinary action after due inquiry. A permanent employee who is absent from duty without leave continuously for a period exceeding three years or more, shall be deemed to have voluntarily abandoned his services."

9. In the present case, it was the case of the management that

the First Respondent had without sufficient cause failed to apply for

leave and had remained absent. The management was entitled to

treat this as a breach of discipline and to hold a disciplinary enquiry to

establish the allegation. Until the misconduct was proved, it was only

an allegation. Nothing of the kind was done. The School Tribunal

has reviewed the material which has come on record in great deal of

detail and noted that it is only after the First Respondent filed a

complaint against the management that it prevented him, with effect

from 8th September 2007, from signing the Muster Roll. The

grievance of the First Respondent is that the management was

resorting to unethical practices by making extortionate demands. The