Bombay High Court
Bachhiram vs The President on 18 December, 2013
Bench: R.V. Ghuge
( 1 ) Writ Petition No.1737 of 2011 and others
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.1737 OF 2011
Bachhiram S/o.Baburao Jadhav,
Age-39 years, Occu-Nil,
R/o. At & Post : Pisewadi,
Tq.Akole, Dist.Ahmednagar PETITIONER
VERSUS
1. The President,
Bahujan Samaj Prabodhan
Shikshan Sanstha, Kotul
Tq.Akole, Dist.Ahmednagar
2. The Secretary,
Bahujan Samaj Prabodhan
Shikshan Sanstha, Kotul
Tq.Akole, Dist.Ahmednagar
3. The Head Master,
Dr.Babasaheb Ambedkar
Vidyalaya, Kotul, Tq.Akole,
Dist.Ahmednagar
4. The Education Officer (Secondary)
Zilla Parishad, Ahmednagar RESPONDENTS
WITH
WRIT PETITION NO.2247 OF 2011
Shivaji S/o.Vitthal Deshmukh,
Age-45 years, Occu-Nil,
R/o. At Post : Kotul,
Tq.Akole, Dist.Ahmednagar PETITIONER
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( 2 ) Writ Petition No.1737 of 2011 and others
VERSUS
1. The President,
Bahujan Samaj Prabodhan
Shikshan Sanstha, Kotul
Tq.Akole, Dist.Ahmednagar
2. The Secretary,
Bahujan Samaj Prabodhan
Shikshan Sanstha, Kotul
Tq.Akole, Dist.Ahmednagar
3. The Head Master,
Dr.Babasaheb Ambedkar
Vidyalaya, Kotul, Tq.Akole,
Dist.Ahmednagar
4. The Education Officer (Secondary)
Zilla Parishad, Ahmednagar RESPONDENTS
WITH
WRIT PETITION NO.2625 OF 2011
Bharati W/o.Jayasingh Pansare,
Age-40 years, Occu-Nil,
R/o. At & Post : Sugaon,
Tq.Akole, Dist.Ahmednagar PETITIONER
VERSUS
1. The President,
Bahujan Samaj Prabodhan
Shikshan Sanstha, Kotul
Tq.Akole, Dist.Ahmednagar
2. The Secretary,
Bahujan Samaj Prabodhan
Shikshan Sanstha, Kotul
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( 3 ) Writ Petition No.1737 of 2011 and others
Tq.Akole, Dist.Ahmednagar
3. The Assistant Teacher,
Dr.Babasaheb Ambedkar
Vidyalaya, Kotul, Tq.Akole,
Dist.Ahmednagar
4. The Education Officer (Secondary)
Zilla Parishad, Ahmednagar RESPONDENTS
WITH
WRIT PETITION NO.5532 OF 2011
Balasaheb Ramchandra Burke,
Age-40 years, Occu-Service,
R/o.Kotul, Tq.Akole,
Dist.Ahmednagar PETITIONER
VERSUS
1. The President,
Bahujan Samaj Prabodhan
Shikshan Sanstha, Kotul
Tq.Akole, Dist.Ahmednagar
2. The Secretary,
Bahujan Samaj Prabodhan
Shikshan Sanstha, Kotul
Tq.Akole, Dist.Ahmednagar
3. The Head Master,
Dr.Babasaheb Ambedkar
Vidyalaya, Kotul, Tq.Akole,
Dist.Ahmednagar
4. The Education Officer (Secondary)
Zilla Parishad, Ahmednagar RESPONDENTS
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( 4 ) Writ Petition No.1737 of 2011 and others
WITH
WRIT PETITION NO.5537 OF 2011
Bhausaheb S/o Nana Gite,
Age-45 years, Occu-Service,
R/o.Kotul,
Tq.Akole, Dist.Ahmednagar PETITIONER
VERSUS
1. The President,
Bahujan Samaj Prabodhan
Shikshan Sanstha, Kotul
Tq.Akole, Dist.Ahmednagar
2. The Secretary,
Bahujan Samaj Prabodhan
Shikshan Sanstha, Kotul
Tq.Akole, Dist.Ahmednagar
3. The Head Master,
Dr.Babasaheb Ambedkar
Vidyalaya, Kotul, Tq.Akole,
Dist.Ahmednagar
4. The Education Officer (Secondary)
Zilla Parishad, Ahmednagar RESPONDENTS
WITH
WRIT PETITION NO.879 OF 2012
Sopan S/o. Namdeo Gholap,
Age-47 years, Occu-Service,
R/o.Kotul,
Tq.Akole, Dist.Ahmednagar PETITIONER
VERSUS
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( 5 ) Writ Petition No.1737 of 2011 and others
1. The President,
Bahujan Samaj Prabodhan
Shikshan Sanstha, Kotul
Tq.Akole, Dist.Ahmednagar
2. The Secretary,
Bahujan Samaj Prabodhan
Shikshan Sanstha, Kotul
Tq.Akole, Dist.Ahmednagar
3. The Head Master,
Dr.Babasaheb Ambedkar
Vidyalaya, Kotul,
Dist.Ahmednagar
4. The Education Officer (Secondary)
Zilla Parishad, Ahmednagar RESPONDENTS
Mr.L.V.Sangit, Advocate for petitioners in W.P.Nos.1737/2011,
2247/2011 and 2625/2011.
Mr.A.M.Gholap, Advocate for petitioners in W.P.Nos.5532/2011,
5537/2011 and 879/2011
Mr.K.M.Suryawanshi, A.G.P. for respondent State.
Mr.R.D.Bhalerao, Advocate for respondent Nos. 1 to 3.
(CORAM : RAVINDRA V.GHUGE, J.)
DATE : 18/12/2013
JUDGMENT :
1. Rule. Rule made returnable forthwith. With consent of the
parties, the petitions are taken up for final hearing.
2. The petitioners, by these petitions, assailed the judgments and
( 6 ) Writ Petition No.1737 of 2011 and others
orders delivered by the School Tribunal in Appeal Nos. 44/2008,
40/2008, 42/2008, 46/2008, 45/2008, 47/2008. This Court has
by its judgment dated 18/12/2013 decided the Writ Petition No.
6092/2011 which is identical to this group of petitions. Since the
above said judgment takes stock of sequence of events in para No.3
and since all these petitioners were terminated on the same date i.e.
15/07/2008, the said facts are not being repeated in this judgment.
It is only the relevant details that are being set out in this judgment.
3. The contentions of the petitioners can be summarized as
follows :-
(a) In 1991, the respondent Management has started the
Secondary School at Padalane, Tq. Akole, Dist. Ahmednagar.
The school was recognized on non grant basis.
(b) In 1995, the respondent Management had transferred
respondent No. 3 School from village Padalane to village Kotul
without prior permission of respondent No.4.
(c) Respondent No.4 had cancelled the recognition of the School
since the Management had transferred the School without
permission.
(d) In 1996, the respondent Management filed Writ Petition No.
99/1996 before this Court challenging the order passed by
( 7 ) Writ Petition No.1737 of 2011 and others
respondent No. 4 cancelling its recognition. This Court granted
stay to the impugned order passed by respondent No.4.
(e) On 01/04/2004, the Writ petition No.99/1996 was disposed of
by this Court by consent of the parties with the directions to
decide the proposal for transfer of school.
(f) In 10/04/2008, respondent No.3 has submitted the Inspection
report of valuation of the School for considering the issue of
grants. The Government after receiving report of inspection
(g)
sanctioned 100% grants to respondent No. 3 School.
On 15/07/2008, after sanction of grants the Management has
terminated services of the petitioner and 9 other employees
orally by refusing work / to sign on the muster roll.
(h) No opportunity of hearing was given by the Management.
(i) All the above petitioners preferred their appeals against their
common oral termination dated 15/07/2008 u/s. 9 of The
M.E.P.S. Act, 1977 before the learned School Tribunal at
Solapur.
(j) By an interim order, the learned School Tribunal protected all
the petitioners and their oral termination dated 15/07/2008
was stayed till decision of appeal.
(h) In 2009, respondent Nos. 1 to 3 have filed writ petition No.
8600/2009 and the group of writ petitions against other
employees challenging the orders passed below Exh. 5.
(i) On 01/07/2009, this Court has disposed of Writ Petition No.
8600/2009 and the group of writ petitions by directing learned
School Tribunal to decide the matters within three months and
parties were directed to maintain status-quo.
( 8 ) Writ Petition No.1737 of 2011 and others
4. The petitioners /original appellants contend that they were
appointed as Assistant Teachers / Lab Attendants / Jr.Clerk / Naik.
Their appointment orders are in their petition paper book evidencing
that they were initially on probation. Section 5 sub-section 2 of the
M.E.P.S.Act, 1977 provides for deemed permanency on completion of
2 years probation if continued thereafter. There can be no dispute so
far as this provision is concerned.
5. The respondents, in para no.2, 2(a), 2(b), 2(c) and 2(d) of the
written statement have made specific contentions which are set out
in the petition paper book. These paragraphs, according to the
petitioners herein, as like the petitioner in W.P.No. 6092/2011,
amount to a clear admission of the status of the petitioners and the
tenure of their employments.
6. The entire issue boils down to whether the School Tribunal
has considered the specific pleadings / admissions on the part of the
respondent/Management in the above said paragraphs of its written
statement, while delivering the impugned judgment.
( 9 ) Writ Petition No.1737 of 2011 and others
7. In the light of the pleadings from the written statement of the
Management, on the one hand, the respondent / Management
admits that the petitioners were working with it for periods ranging
from 12 to 18 years, on the other hand, it vehemently contends that
they still would not be entitled to the status of "permanency" because
signature of the Secretary on the appointment orders is bogus, there
was no advertisement published by the Management, the Head
Master was supposed to sign on the appointment orders and lastly
that the Selection Committee for selecting proper candidates was not
formed.
8. In the light of the pleadings of the respondents, it is clear that
it was the respondents' Management which allowed the petitioners to
work for the periods ranging from 12 to 18 years and now contends
that the petitioners were never employees of the Management, that
the petitioners should produce the signature of the Head Master on
their appointment orders, they should produce a copy of the
advertisement, they should produce their salary registers and on
account of having failed to do so, such appointments are termed as a
back door entry.
( 10 ) Writ Petition No.1737 of 2011 and others
9. The judgment of the Apex Court in case of Secretary, State of
Karnataka and others Vs. Umadevi and others, reported at AIR
2006 SC 1806 relied upon by the Management, has not opened a
slaughter house. In fact in the said judgment, the Apex Court has
concluded that irregular appointments for periods beyond 10 years
should be considered favourably and the Management should come
up with a scheme for regularising such irregular appointments owing
to the fact that they are not illegal.
10. The Apex Court in para No. 44 of the Umadevi (supra)
judgment holds as under :-
"One aspect needs to be clarified. There may be cases where
irregular appointments (not illegal appointments) as explained
in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra),
and B.N. NAGARAJAN (supra), and referred to in paragraph 15
above, of duly qualified persons in duly sanctioned vacant
posts might have been made and the employees have
continued to work for ten years or more but without the
intervention of orders of courts or of tribunals. The question of
regularization of the services of such employees may have to
be considered on merits in the light of the principles settled by
this Court in the cases above referred to and in the light of this
judgment. In that context, the Union of India, the State
( 11 ) Writ Petition No.1737 of 2011 and others
Governments and their instrumentalities should take steps to
regularize as a one time measure, the services of such
irregularly appointed, who have worked for ten years or more
in duly sanctioned posts but not under cover of orders of courts
or of tribunals and should further ensure that regular
recruitments are undertaken to fill those vacant sanctioned
posts that require to be filled up, in cases where temporary
employees or daily wagers are being now employed. The
process must be set in motion within six months from this date.
We also clarify that regularization, if any already made, but
not subjudice, need not be reopened based on this judgment,
but there should be no further by-passing of the constitutional
requirement and regularizing or making permanent, those not
duly appointed as per the constitutional scheme."
11. Nowhere in the written statement filed by the
respondent/Management before the Tribunal has it been contended
that the appellants /petitioners herein were otherwise just not
eligible to be appointed as an Assistant Teacher /Lab Attendant / Jr.
Clerk / Naik.
12. There are many such cases which have come up for the
consideration of this Court. Many managements have taken such a
stand while summarily / orally terminating their employees. Careers
( 12 ) Writ Petition No.1737 of 2011 and others
/ lives of teachers / employees are being dealt with in a casual
manner by such Management. In the face of an admission in the
written statement that the petitioners are working for years, the
Management is now attempting to take advantage of its own wrong by
contending after 12 to 18 years that the appointment orders did not
carry the signature of the Head Master or that the signature of the
Secretary is bogus or that there was no proper selection Committee.
13. Having gone through the impugned judgment, it is clear that
the learned Tribunal has failed to deal with the said pleadings of the
respondent/Management, which are available in the petition paper
book. Submissions that the appointments are irregular and the
appointments amount to a back door entry have weighed too much
upon the mind of the learned Tribunal despite having concluded in
the impugned judgments that 'There is no doubt, that the Appellant
has produced number of documents to show that he has worked with
the R/M.' In my view, the impugned judgments on this count suffer
from a serious legal infirmity and perversity. Such judgments ought
not be sustained and are, therefore, being quashed and set aside by
this order.
( 13 ) Writ Petition No.1737 of 2011 and others
14. I quote Benjamin N.Cardozo, Associate Justice of the United
States, Supreme Court, "Judges are supposed to use all this power to
make sure that justice is done, that at some basic level the verdicts
issued in their courts display a certain degree of reasonableness. The
Judge, ............ is under a duty, within the limits of his powers of
innovation, to maintain a relation between Law and morals, between
the precepts of jurisprudence and those of reason and good
conscience."
15. Therefore, ends of justice would be met if the matters are
relegated back to the School Tribunal for a proper adjudication. The
Tribunal is expected to go through the pleadings of the rival parties
and deal with each contention and even the admissions appearing in
the written statement. Appreciation of oral and documentary
evidence has paramount importance, which the learned Tribunal
should bear in mind.
16. As such, writ petitions are allowed. Judgment and orders
impugned in these petitions dated 07/12/2010, passed by the
learned School Tribunal in Appeal Nos. 44/2008, 40/2008, 42/2008,
( 14 ) Writ Petition No.1737 of 2011 and others
46/2008, 45/2008, 47/2008 respectively are quashed and set aside.
All these appeals are relegated back to the School Tribunal for proper
adjudication, which shall be decided on their own merits and without
being influenced by the observations appearing in this order.
17. Learned Advocate for the petitioners submits that the
appellants / petitioners were protected by way of an interim order by
the School Tribunal. The said order came to be modified by the order
of this Court dated 01/07/2010 in W.P.No.8744/2009 and a group of
writ petitions and status-quo was maintained. Para No. 3 of the said
order makes things clear.
18. Learned Advocate for the petitioners contends that during re-
hearing of the appeals by the learned School Tribunal, the
respondent/Management is likely to fill in the posts and that would
create further complications in these matters. Learned
Adv.Mr.Bhalerao for the respondents submits that they are in need
of Assistant Teachers / Lab Attendants / Jr.Clerks / Naik and
therefore they can not be prevented from recruiting fresh Assistant
Teachers / employees. I find such contentions falicious.
( 15 ) Writ Petition No.1737 of 2011 and others
19. Nevertheless, the situation can be adequately dealt with. The
learned School Tribunal is directed to decide the appeals within a
period of six months and preferably by the end of June 2014. Till
then, the respondents shall not fill in the post on which the
petitioners were earlier working. If filled in, they shall be subject to
the outcome of the appeals.
20. With these directions, writ petitions are partly allowed. Rule is
thus made absolute in the above terms.
( RAVINDRA V.GHUGE, J.)
khs/Dec.2013/wp6092-11
