Bombay High Court
Shhoutak Ali Mohammad Ali vs The President on 18 December, 2013
Bench: R.V. Ghuge
( 1 ) Writ Petition No.6092 of 2011
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.6092 OF 2011
Abed Ullhah Sayyed
Shhoutak Ali Mohammad Ali,
Age-40 years, Occu-Nil,
R/o. At Post Wagholi,
Tq. and Dist. Osmanabad 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
Mr.M.B.Kolpe, Advocate for petitioner.
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
::: Downloaded on - 23/12/2013 20:36:03 :::
( 2 ) Writ Petition No.6092 of 2011
JUDGMENT :
1. Rule. Rule made returnable forthwith. With consent of the
parties, the petition is taken up for final hearing.
2. The petitioner, by this petition, assails the judgment dtd.
07/12/2010 delivered by the School Tribunal in Appeal No.43 of
2008.
3. The contentions of the petitioner 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 the
respondent No. 3 School from village Padalane to village Kotul
without prior permission of respondent No.4.
(c) The 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
respondent No. 4 cancelling its recognition. This Court granted
( 3 ) Writ Petition No.6092 of 2011
stay to the impugned order passed by respondent No.4.
(e) The petitioner has passed B.Sc. in the year 1994 in First Class.
Thereafter he has passed B.Ed. in the year 1997 from Nagpur
University in First Class.
(f) On 17/07/1997, the petitioner was appointed as Assistant
Teacher in respondent No. 3 School on probation for 2 years.
The respondent No. 3 School was unaided having 8th to 10th
standard classes.
(g)
In 1999, the petitioner had completed the period of probation
and was deemed to have become a permanent employee.
(h) 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.
(i) In 2005, respondent No.2 sent the proposal of the petitioner
along with other employees for approval to respondent No.4.
(j) 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
sanctioned 100% grants to respondent No. 3 School.
(k) 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.
(l) No opportunity of hearing was given by the Management.
(m) On 31/07/2008, the petitioner preferred an Appeal U/s 9 of
M.E.P.S. Act, 1977 before the learned School Tribunal at
Solapur.
(n) On 17/04/2009, the stay application filed below Exh. 5 was
( 4 ) Writ Petition No.6092 of 2011
allowed by the learned School Tribunal whereby oral
termination dated 15/07/2008 was stayed till decision of the
appeal.
(o) In 2009, the 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.
(p) 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.
4. The petitioner/original appellant contends that he was
appointed by an appointment order dated 10/07/1997 w.e.f.
17/07/1997 on probation for a period of 2 years. The appointment
order is at page No.27 of the petition paper book clearly evidencing
the said fact. 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 at page
( 5 ) Writ Petition No.6092 of 2011
No.67 and 68 of the petition paper book. They read thus :
2. "Assuming but not admitting that, if the appellant
herein came to be appointed as Asstt. Teacher w.e.f.
17/07/1997 and the order of the appointment dated
10/07/1997 the advertisement if given in the larger news
paper minimum to larger news papers in the district area.
The appellant herein failed to acknowledge to attach the
advertisement if given so. It is the mandatory procedure
after having published the advertisement in larger papers
the constitution of the selection committee would come to
effect for selecting the candidates who have faced the
interview.
(a) In the instant case it seems that there is no
advertisement for filling the post of Asstt. Teacher by the
respective management at the relevant and material time.
(b) Furthermore, it seems that there was no
constitution of the selection committee for selecting the
proper candidates for the post of Asstt. Teacher.
(c) It is pertinent to be noted that, the Sub Rule 2
of Rule 9 of M.E.P.S. Rules 1981 enjoins thus :
"Appointments of teaching staff (other than the Head
and Assistant Head) and those of non teaching staff in a
school shall be made by the school committee."
In the instant case the appointment order appellant
is passed by the Secretary of the Management concerned
and the said appointment order dated 10/07/1997 giving
( 6 ) Writ Petition No.6092 of 2011
effect from 17/07/1997 is absolutely bad in law, as ab-
initio.
(d) In the aforesaid facts and circumstances above
referred clauses (a to c) it is clear that the entry of the
appellant herein is back door entry therefore even though
the appellant has served more that seventeen years he has
not got the permanent status. "
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.
7. In the light of the pleadings from the written statement of the
Management, on the one hand, the respondent / Management
admits that the petitioner was working with it for more than 17 years.
On the other hand, it vehemently contends that he still would not be
entitled to the status of "permanency" because signature of the
Secretary on the appointment order is bogus, there was no
advertisement published by the Management, the Head Master was
supposed to sign on the appointment order and lastly that the
Selection Committee for selecting proper candidates was not formed.
( 7 ) Writ Petition No.6092 of 2011
8. In the light of the pleadings of the respondents, it is clear that
it was the respondents' Management which allowed the petitioner to
work for 17 years and now contends that the petitioner was never an
employee of the Management, that the petitioner should produce the
signature of the Head Master on his appointment order, he should
produce a copy of the advertisement, he should produce his salary
registers and on account of having failed to do so, such appointment
is termed as a back door entry.
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)
( 8 ) Writ Petition No.6092 of 2011
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
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."
( 9 ) Writ Petition No.6092 of 2011
11. Nowhere in the written statement filed by the
respondent/Management before the Tribunal has it been contended
that the appellant/petitioner herein was otherwise just not eligible to
be appointed as an Assistant Teacher.
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
/ lives of teachers are being dealt with in a casual manner by such
Management. In the face of an admission in the written statement
that the petitioner is working for years, the Management is now
attempting to take advantage of its own wrong by contending after 17
years that the appointment order 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 reproduced here in above.
Submissions that the appointment is irregular and the appointment
( 10 ) Writ Petition No.6092 of 2011
amounts to a back door entry have weighed too much upon the mind
of the learned Tribunal despite having concluded in paragraph No. 19
on page No. 141 of the petition paper book 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 judgment
on this count alone suffers from a serious legal infirmity and
perversity. Such a judgment ought not be sustained and is therefore
being quashed and set aside by this order.
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 matter is
relegated back to the School Tribunal for a proper adjudication. The
( 11 ) Writ Petition No.6092 of 2011
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 petition is allowed. Judgment and order dated
07/12/2010, passed by the learned School Tribunal in Appeal No.
43/2008 is quashed and set aside. Appeal No.43/2008 is relegated
back to the School Tribunal for proper adjudication, which shall be
decided on its own merits and without being influenced by any
observations appearing in this order.
17. Learned Advocate for the petitioner submits that the appellant
was 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.
( 12 ) Writ Petition No.6092 of 2011
18. Learned Advocate for the petitioner contends that during re-
hearing of the appeal by the learned School Tribunal, the
respondents/Management is likely to fill in the post and that would
create further complications in the matter. Learned Adv.Mr.Bhalerao
for the respondents submits that they are in need of Assistant
Teachers and therefore they can not be prevented from recruiting
fresh Assistant Teachers. I find such contentions falicious.
19. Nevertheless, the situation can be adequately dealt with. The
learned School Tribunal is directed to decide the appeal 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 petitioner
was earlier working. If filled in, they shall be subject to the outcome
of the appeal.
20. With these directions, writ petition is partly allowed. Rule is
thus made absolute in the above terms.
( RAVINDRA V.GHUGE, J.)
khs/Dec.2013/wp6092-11
