Bombay High Court

Smt.Nita Ramesh Danane vs Dombivali Mitra Mandal on 12 September, 2008

Bench: Nishita Mhatre

bsb

                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           CIVIL APPELLATE JURISDICTION

                               WRIT PETITION NO. 6155 OF 1997




                                                                            
      Smt.Nita Ramesh Danane                                ... Petitioner




                                                    
                    v/s

      1. Dombivali Mitra Mandal
      2. Sheth K.B.Veera High School




                                                   
      3. The Education Officer (Secondary)
         Zilla Parishad, Thane.
      4. The State of Maharashtra                           ... Respondents




                                          
      Ms.Anjali N. Helekar for the petitioner.

      Mr.S.M.Oak for respondent Nos.1 and 2.
                               
      Mr.C.R.Sonawane, A.G.P. for Resp.Nos.3 and 4.
                              
                                        CORAM: SMT.NISHITA MHATRE, J.

                                        DATED: 12TH SEPTEMBER, 2008

      ORAL JUDGMENT:
           JUDGMENT

1. The petition challenges two orders passed by the

School Tribunal in Appeal Nos. 162 of 1997 and 164 of

1997. The only thing that can be deciphered from these

two orders is that the appeals filed by the petitioner

have been dismissed. The order of the School Tribunal

distorts the facts and is bereft of any reasons.

2. The petitioner was appointed as a Librarian by the

respondent by an order dated 22.9.1993. This order

mentions that she had been appointed as a full time

Librarian consequent upon her application made to the

respondents. The appointment was to take effect from

6.10.1993. Clause 2 of this appointment order clearly

mentions that her appointment was on probation for a

period of two years. The appointment order has been

issued by the Head Master of the school. Clause 3 of

the appointment order mentions that the terms and

conditions of service were governed by the Maharashtra

Employees of Private Schools (Conditions of Service)

Regulation Act, 1977 and Rules made thereunder. The

petitioner

has contended that she was directed to sign

an agreement which was executed on a stamp paper worth

Rs.10/- on 20.9.1994. By this agreement, the petitioner

had agreed that she was appointed against a reserved

post. On 24.3.1995, a letter was issued to her by

respondent No.2 informing her that her appointment was

approved only from 13.6.1994 as a Full Time Librarian in

the school upto the end of academic year 1994-95 and

would come to an end on 30.4.1995.. On 1.8.1995 another

letter was issued to the workman informing her that

respondent Nos.1 and 2 had received candidates from the

Backward Classes for being appointed as Librarian and,

therefore, the petitioner's services would be terminated

on 1.9.1995. The petitioner then preferred an appeal

before the School Tribunal, Nashik. That appeal was

transferred to the School Tribunal, Navi Mumbai and

numbered afresh as Appeal No.164 of 1995.

3. While the appeal was pending, a letter dated

21.10.1995 was issued by the respondent No.1 informing

her that the management had reconsidered its decision to

terminate her services and that, therefore, they were

reinstating her. A resolution to that effect had been

passed by the management of the school. The petitioner,

by her letter dated 6.11.1995 informed respondent Nos.1

and 2 that she was reporting for duty with immediate

effect,

pursuant to the letter of the management dated

21.10.1995 which had been received by her on 26.10.1995.

On 8.11.1995, the petitioner informed the management

that she would withdraw the appeal filed before the

School Tribunal. By another letter of the same date,

she requested the respondent Nos.1 and 2 to sanction her

leave from 9.11.1995 to 19.11.1995 due to her impending

delivery. Thereafter on 23.11.1995 the petitioner

requested the respondent Nos.1 and 2 to grant her

maternity leave from 20.11.1995 on which date she had

delivered a child. She sought maternity leave of three

months as available under the M.E.P.S. Rules. There is

no dispute that such leave was granted to the

petitioner.

4. On 19.2.1996, respondent Nos.1 and 2 acknowledged

that the petitioner had resumed her duty after being on

maternity leave. However, they called upon her to

explain as to why she had not withdrawn the appeal

pending before the School Tribunal. By her letter dated

2.3.1996, the petitioner called upon the respondents to

permit her to sign the muster roll which she had been

prevented from signing from 23.2.1996. The petitioner

informed respondent Nos.1 and 2 that she would withdraw

the appeal on 2.4.1996. As the petitioner was not

permitted to sign the muster roll after 23.2.1996, it

led to her

filing another appeal before the School

Tribunal, Nashik which was subsequently transferred to

Navi Mumbai and numbered afresh as Appeal No.162 of

1997.

5. A written statement was filed by respondent Nos.1

and 2 in Appeal No.162 of 1997 (the second appeal)

contending that the petitioner's services were not

terminated and in fact she had left the service of her

own accord w.e.f. 23.2.1996. Respondent Nos.1 and 2

admitted that the petitioner was appointed as a

Librarian on 6.10.1993 by the order dated 22.9.1993.

However, it has been contended that the appointment was

against a reserved category post. Respondents have also

contended that they were required to appoint the

petitioner on a clock hourly basis as the Education

Officer has not approved of her appointment permanently.

It is contended that the appointment of the petitioner

on probation w.e.f. 31.6.1994 was approved. Thereafter

it is contended that a list of backward class candidates

was received from the Social Welfare Officer for the

post of Librarian and it was for this reason that the

respondents terminated the services of the petitioner

w.e.f. 1.9.1995. Respondents have also admitted that

the services of the petitioner had been terminated on in

October, 1995 and that on a reconsideration of the

situation,

the management had reinstated her in service

from 1.11.1995. It is also admitted that the petitioner

had applied for maternity leave, which was granted and

that she resumed duty w.e.f. 19.2.1996. It is also

admitted that she attended the school on 19th, 20th and

22nd February, 1996, 21.2.1996 being a holiday. The

respondents have also admitted that sick leave for the

period from 9.11.1995 till 19.11.1995 had been granted

to the petitioner. However, it is contended that the

petitioner was not stopped from reporting for work nor

was she prevented from carrying on her duties; instead,

it was the petitioner who had remained absent from

23.2.1996. The respondents have then pleaded that "It

appears that it was not possible for the appellant to

continue her duty as the baby was very small." The

allegation in the written statement is that the

petitioner had remained absent and had in fact

voluntarily abandoned her services.

6. The School Tribunal has, for reasons which to say

the least are puerile, dismissed both the appeals. In

fact, while dismissing Appeal No.164 of 1997 uncalled

for remarks have been made by the School Tribunal

against the petitioner about her motive in filing the

appeal to extract more money from the respondents by way

of salary. The Tribunal had then directed the

respondents to ig pay her salary in accordance with the

rules from 1.9.1995 to 25.10.1995. Then, the Tribunal

has very charitably, directed the respondents to give an

amount of Rs.100/- as bonus in addition to the aforesaid

amount if the respondents felt that the petitioner was a

good worker. The amount was directed to be paid within

15 days of the order i.e. from 20.9.1997. Admittedly,

this amount has not been paid to the petitioner so far.

7. The reasoning of the Tribunal in Appeal No.162 of

1997 is absurd and illogical. The Tribunal has paid no

heed to the pleadings on record and has passed an order

wherein observations have been made which are completely

contrary to the record. Although the respondents had

not contested the fact that the petitioner had applied

for maternity leave, the Tribunal by its strange logic

has observed that the petitioner had not in fact applied

for the maternity leave. The Tribunal has then held

that the petitioner was a temporary employee and not a

probationer since her services were terminated prior to

completion of the probation period. The Tribunal has

directed the respondents to pay 97 days' salary to the

petitioner within 15 days of the order together with

costs of Rs.500/-. It was further directed that, if the

payment was not made by the respondents within the

period stipulated, the respondents would have to pay 2%

interest

to the petitioner till the date of her actual

payment. Admittedly, this amount also has not been paid

to the petitioner although the respondents have not

challenged the order.

8. The learned counsel appearing for the petitioner

submits that the respondents have made every attempt to

harass the petitioner and to deprive her of her legal

rights. She submits that the correspondence on record

indicates that it was after the petitioner joined duty,

consequent upon completion of her maternity leave that

the services of the petitioner were terminated. She

submits that the respondents have prevented the

petitioner from signing the muster roll only because she

was unable to withdraw Appeal No.164 of 1996 filed

before the School Tribunal. The learned counsel points

out that the dates on which the petitioner was expected

to withdraw the appeal fell during the period of her

confinement and, therefore, she was unable to attend the

Court to withdraw the appeal. On the next adjourned

date, her advocate was not present and, therefore, she

could not withdraw the appeal. The appeal was adjourned

to 1.3.1996 before which the petitioner's services were

terminated. The learned counsel submits that the

findings of the School Tribunal that the appointment of

the petitioner was on a temporary basis is erroneous and

contrary

to the record available. She points out that

the letter which is annexed to the petition and which

admittedly has been issued to the petitioner, appoints

her on probation for a period of two years from

6.10.1993. The learned counsel submits that the

agreement dated 20.9.1994 which the petitioner signed

under duress cannot supersede the fact that she has been

appointed as a full time librarian w.e.f. 6.10.1993 on

probation for a period of two years. The learned

counsel points out that the letter of appointment does

not mention that her appointment was not in a clear

vacancy or that she was appointed to a temporary post.

The learned counsel then submits that there is a

evidence on record which indicates that the petitioner

resumed service after her confinement. She was not

permitted to sign the muster roll after 23.2.1996 and

thereby the respondents had terminated her services

illegally and without following due procedure laid down

under the M.E.P.S. Act.

9. The learned counsel for respondent Nos.1 and 2

submits that the Tribunal has committed no error in

dismissing the appeals. He points out that the

appointment of the petitioner was on a temporary basis

and that the petitioner had agreed to such an

appointment by signing an agreement on 20.9.1994. He

submits

that although the appointment letter issued to

her on 22.9.1993 mentions that her appointment was on a

probation for a period of two years, in fact, the

appointment was against a reserved post and, therefore,

it was a temporary appointment. He then submits that

there is no contract which subsists for it to be

enforced as the appointment itself came to an end after

one year. When the appeal was filed, the contract of

service was not in existence and, therefore, it cannot

be enforced, submits the learned advocate. The next

submission of the learned counsel is that the

appointment has come to an end because of the letter

issued to the petitioner on 24.3.1995 itself and,

therefore, the question of granting any relief to her

does not arise. He points out that the petitioner had

accepted the letter dated 24.3.1995 wherein it was

mentioned that she has been re-appointed from 13.6.1994

and that her services would come to an end from

30.4.1995 if they were not approved by the Education

Officer. The learned counsel submits that having

accepted that the appointment was only for one academic

year, the petitioner cannot now contend that she was

appointed on a probation. He then submits that in any

event the appointment itself is not valid and in

accordance with Rule 9 of the M.E.P.S. Rules. He

submits that the Division Bench of this Court in the

case

of Priyadarshini Education Trust & ors. v/s Ratis

(Rafia) Bano d/o Abdul Rasheed & ors., reported in 2007

(6) Mh.L.J. 667, has held that in order to claim

benefit of deemed permanency, a teacher must be duly

selected, he must be appointed in a clear permanent

vacancy and the appointment must not be for a fixed

period. He further submits that, any appointment made

under the M.E.P.S. Act and Rules framed thereunder,

must be made in accordance with the Rules, more

particularly, Rule 9. The learned counsel submits that

no advertisement was issued while appointing the

petitioner and, therefore, it cannot be held that her

appointment was valid and consequently her appointment

cannot be a deemed permanent appointment.

10. In my opinion, the submissions of the learned

counsel for the respondents cannot be accepted for more

than one reason. A plain reading of the letter dated

22.9.1993 indicates that the appointment is made on

probation for a period of two years. The M.E.P.S.

Rules required appointment order to be issued in a

particular manner. Once such an appointment order is

issued, the management cannot by means of a so-called

agreement reduce the term of appointment or change the

nature of the status of the employee.



    11.         Neither
                                
                                 the    M.E.P.S.          Act nor the         Rules       framed

    thereunder              contemplate         any         agreement         between            the
                               
    management             of the school and an employee in respect                              of

    the         appointment            and     the        status     of      the     employee.

    Therefore,             in    my     view,        it would      be     held       that        the

so-called agreement which has been purportedly signed by

the parties on 20.9.1994 has no effect in law and cannot

be discharged from service on the basis of such an

agreement. Besides, the contention that the petitioner

was appointed against a reserved category post, is also

without merit. There is no condition in the appointment

letter that the appointment was being made against the

reserved category post or that the appointment was only

for a temporary period, till such time as a suitable

candidate from the reserved category was available.

12. In these circumstances, the submission of the

learned counsel for the respondents that the appointment

was for a temporary period cannot be accepted. There

can be no doubt that the appointment was on probation

and, therefore, the petitioner would be deemed to be

permanent after completion of two years in service i.e.

from 6.10.1995. There is no material on record to

indicate that during the period of probation the

behaviour or work of the petitioner was not upto the

mark. Apart from this, the question of the petitioner

being appointed ig against a reserved category post does

not arise. The post to which the petitioner was

appointed was that of a Librarian which is an isolated

post. There is no pleading in the written statement

that the institution was running more than one school

and that, therefore, the post was not an isolated post.

13. The contention of the learned counsel for the

respondents that the appointment itself was not valid as

it was not in accordance with Rule 9, has not been

pleaded in the written statement. There is no material

at all to indicate that the appointment was not valid.

The learned counsel sought to justify his submission by

pointing out that the appointment order refers to the

petitioner's applications dated 13.9.1993 and 18.9.1993.

He then points out that, in para 3 of the petition, the

petitioner has pleaded that she applied for the post

when she learnt that the respondents were to employ a

qualified Librarian. In my view, if it is the case of

the respondents that the appointment itself was invalid,

then it was for the respondents to plead so in their

written statement. There is not a whisper about this in

the written statement. Therefore, in my opinion, this

submission of the learned counsel for the respondents is

an after-thought and cannot be accepted. Had there in

fact been an invalid appointment, the contention would

certainly

have been raised by the respondents in their

written statements. Apart from this, Rule 9(8) provides

that a reserved post must be advertised. However there

is no such requirement for advertisement of a post in

the open category, such as the post of a Librarian.

Rule 9(3) only contemplates an application being made by

the candidate with the requisite details in respect of

educational and professional qualifications, experience,

etc. The petitioner had applied for the post of

Librarian, which is not a reserved post since it is an

isolated post, in the manner prescribed under Rule 9(3).

Therefore, the contention of the learned advocate for

the respondents is untenable.

14. The question therefore is, what relief can be

granted to the petitioner at this stage. Undisputedly,

she has been reinstated in service by an interim order

of this Court passed on 30.6.1998. In my opinion, there

can be no dispute that the petitioner's appointment was

valid and that she was appointed on probation. However,

there is no material before me to establish the fact

that the petitioner had in fact been prevented from

signing the muster roll. Mere pleadings cannot take the

place of evidence. There is correspondence on record

which indicates that the services had been terminated at

an earlier date, before her confinement after which she

was reinstated.

                            ig       In   respect     of      the        subsequent

    termination          from    service,      the only letter           which        was
                          
    written        to     the    management      by the    petitioner            is    of

2.3.1996, indicating that she was prevented from signing

the muster roll. There is no material on record to

indicate whether the muster rolls were produced before

the Tribunal. In such circumstances, in my view, the

matter will have to be remanded to the Tribunal for a

decision on these issues, namely, (i) whether the

services of the petitioner were illegally terminated on

and from 23.2.1996 or whether she had abandoned her

services as contended by the respondents ? (ii) Whether

the petitioner is entitled to back wages from 23.2.1996

till she was reinstated by the order dated 30.6.1998 ?

and (iii) Whether the petitioner is entitled to any