Bombay High Court
Anoop Ganpatrao Bobde vs Dnyansagar Bahuuddeshiya ... on 25 August, 2015
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 738 of 2009
Anoop Ganpatrao Bobde,
Opposite Hanuman Temple,
Om Society, Arni Road, Yavatmal,
Tq. And Distt. Yavatmal ...... PETITIONER
...VERSUS...
1] Dnyansagar Bahnuuddeshiya Shaikshanik
Sanstha, Yeotmal, through its
Secretary, Shri Ravindra B. Rajankar,
Bharti Nagar, Behind Hero Hondia Show Room,
Darwha Road, Yeotmal,
Tq. And Distt. Yeotmal.
2] Incharge Head Master,
Shri U.B.Ambagade, Dyansagar
Secondary Schook, Ashti (Kanhoba),
Tq. And Distt. Yeotmal.
3] The Education Officer,
Zilla Parishad, Umarsara Road,
Yeotmal, Tq. And Distt. Yavatmal.
4] Jayant Vasantrao Hiwarkar,
C/o. Dnyansagar Secondary School,
Ashti (Kanhoba),
Tq. And Distt. Yavatmal.
5] The Presiding Officer,
School Tribunal, Amravati Division,
Amravati. ...... RESPONDENTS
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Shri P.N. Shende, counsel for Petitioner.
ShriF.T.Mirza, counsel for Respondent nos. 1 and 2
Shri Anand Deshpande, Counsel for Respondent No.4
Shri C.N.Adgokar, AGP for Respondent Nos. 3 and 5
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CORAM: R. K. DESHPANDE, J.
th
DATE : 25
AUGUST, 2015 .
ORAL JUDGMENT
1] The School Tribunal partly allowed the Appeal
No. 67 of 1999 filed by the petitioner under Section 9 of the
Maharashtra Employees of Private Schools (Condition of
Service) Regulation Act, 1977 and Rules 1981 (hereinafter
referred to as "the M.E.P.S Act" and "the said Rules"),
challenging his termination from service with effect from
03.07.1999. The School Tribunal has declared the
termination to be illegal and void and it is set aside. The
appellant is held entitled to compensation of the salary of six
month including pay and allowances, if any, against loss of
employment and the Management was directed to pay six
months full salary at the rate prevailing on the date of
decision of the appeal on the post of Physical Education
Teacher within a period of 60 days.
2] The employee is before this Court and claims
modification of the order passed by the School Tribunal,
seeking reinstatement in service with full backwages. None
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of the respondents have preferred any appeal challenging the
decision given by the School Tribunal.
3] The undisputed factual position is that, in
response to the advertisement dated 19.05.1998, the
petitioner applied for one post of Physical Education Teacher
and was interviewed on 03.05.1998 by the competent
Selection Committee. Accordingly, he was appointed by an
order dated 22.06.1998. The petitioner possessed the
requisite qualification of B.A. B.P.Ed for appointment to the
post of Physical Education Teacher. The Management did
not forward the proposal for grant of approval to the
appointment of the petitioner to the Education Officer for the
reason that the School was on "no grant basis". There is no
dispute that the petitioner was continued in service upto
30.04.1999.
4] However, the case of the petitioner is that, he
was continued in service thereafter also upto 03.07.1999,
though the case of the Management was that the services of
the petitioner automatically came to an end on 30.04.1999
i.e. upto the end of academic session 1998-99. There is no
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dispute that no written notice or order of termination was
issued and the School Tribunal has accepted the case of the
petitioner that he was continued in service upto 30.07.1999.
The appeal was filed within a period of limitation of 30 days
before the School Tribunal. There is no perversity in
recording such findings which are based on evidence on
record.
5] Before the School Tribunal, the petitioner
produced photostat copy of the order of appointment dated
22.06.1998, indicating specifically that he was appointed on
probation for a period of two years from 22.06.1998 to
21.06.2000 in the scale of Rs.1400-2600. The order bears
signature of the President/Secretary of the Society. The
Management disputed the said order of appointment and
produced another order of appointment of the same date,
which indicates that the appointment of the petitioner was
made from 22.06.1998 till the end of 1998-99 academic
session, purely on temporary basis. It also contains a recital
that at the end of this period, his services shall come to an
end automatically.
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6] The School Tribunal has relied upon sub-rule (5)
of Rule 9 of the said Rules, which runs as under.
"9. Appointment of staff.
......
......
(5) A letter of appointment order in the Form in
Schedule "D" shall be issued to a candidate
appointed to the post. A receipt in token of
having receiving the appointment order shall
be obtained from the candidate appointed.
The School Tribunal recorded the finding that in terms of
aforesaid Rule, the order of appointment produced by the
Management ought to contain the signature of the petitioner
in token of having received the appointment order in terms of
the aforesaid Rule. It recorded the finding that the order of
appointment produced by the Management does not contain
any such signature of the petitioner of having received the
order of appointment. These findings are not challenged. It
cannot, therefore, be presumed that it is the same order
which was given to the petitioner.
7] The School Tribunal relied upon the photostat
copy of the order of appointment produced by the petitioner
showing that he was on probation for a period of two years.
The order bears signature of the President/Secretary of the
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Society which is not denied. The School Tribunal recorded
the finding that the appointment of the petitioner was in a
clear and permanent vacancy and in the manner prescribed,
as contemplated by Section 5 (1) of the M.E.P.S Act
and hence, the petitioner should be deemed to have
been appointed on probation for a period of two years. Such
findings are also not challenged.
8] The School Tribunal though set aside the order
of termination on the ground that the same was illegal and in
contravention of sub-section (3) of Section 5 of the M.E.P.S.
Act, read with Rule 28(1) of the said Rules. It, however,
refuses to grant reinstatement with backwages to the
petitioner on the ground that the respondent No. 4 in this
petition was appointed on 16.06.1999 in response to the
advertisement issued on 06.06.1999, in the post which fell
vacant on account of the petitioner being out of employment.
The School Tribunal also relied upon the fact that the
appointment of the respondent No. 4 was approved by the
Education Officer and he is in continuous service for a period
of 8 years and grant of reinstatement to the petitioner would
cause prejudice to the legal rights accrued in favour of
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respondent No.4.
9] The only question which needs consideration by
this Court is whether the School Tribunal has committed an
error in refusing to grant reinstatement to the petitioner in
service along with backwages. The consequence of grant of
such order would be to terminate the services of respondent
No. 4 who rendered 8 years service.
10] It was not the case of the Management before
the School Tribunal that the termination of the petitioner was
as a probationer on the ground of unsatisfactory service in
exercise of the powers conferred upon the Management
under sub-section (3) of Section 5 of the M.E.P.S Act. Once
the findings recorded by the School Tribunal that the
petitioner was appointed on probation for a period of two
years with effect from 22.06.1998 and that he was continued
in service beyond 22.06.2000, the petitioner gets deemed
confirmation in service by virtue of sub-section (3) of
Section 5 of the M.E.P.S. Act. In the light of the undisputed
factual position and the findings recorded, the School
Tribunal could not have refused to grant reinstatement to the
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petitioner in service.
11] Though the respondent No. 4 was appointed
subsequently on 16.06.1999, the approval to his appointment
was made subject to the result of appeal filed by the
petitioner. In view of this, the contention of Shri Deshpande,
the learned counsel appearing for Respondent No. 4 that
upon completion of two years period of probation, the
respondent No.4 has acquired deemed confirmation in
service in terms of sub-section (3) of Section 5 cannot be
accepted. In such situation, there was no question of
conferring any legal right upon the respondent No. 4 to
continue in service. Once it is held that the appointment of
the petitioner was on probation and the finding recorded by
the School Tribunal are accepted by the respondents, unless
there is a case of terminating the services of the petitioner in
exercise of powers conferred by sub-section (3) of Section 5
of the M.E.P.S Act, there was no other option for the School
Tribunal but to pass the order of reinstatement of the
petitioner.
12] The decision of the Full Bench of this Court in
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Ramkrishna Chauhan vrs. Seth D.M.High School and
others, reported in 2013 (2) Mh.L.J. 713 and also the
decision of the Apex Court in case of Bharatiya Gramin
Punarrachana Sanstha vrs. Vijay Kumar and others,
reported in AIR 2002 SC 3092, relied upon by the
respondents, have been considered by this Court in the
decision in case of Shamim Azad Education Society,
Giroli and others vrs. Presiding Office, School Tribunal,
Amravati and others reported in 2014 (4) Mh.L.J. 723. The
view which in the present case has been taken is in fact
supported by the view of the Full Bench as has been held in
the judgment in Shamim Azad Education Society's case.
13] Shri Mirza, the learned counsel for the
Management submits that the petitioner has worked only for
one year and therefore, he cannot be granted permanency in
service unless he successfully completes the period of
probation. The learned counsel has relied upon the decision
of Bharatiya Gramin Punarrachana Sanstha cited supra.
In the said decision, the appointment order produced on
record and admitted in evidence indicate that appointment
was only for a period of two academic sessions of 1996-97
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and 1997-98 and it was not put on probation. The order of
appointment stipulated that after expiry of said period of two
years, the services of the first respondent would come to an
end without any notice. There was also an undertaking
given by the employee that he would be relieved on expiry of
the period of academic session 1997-98 and he shall not
claim any right to the said post. In such a situation, the Apex
Court has held that the employee in the said decision was not
entitled to remain in service after the end of academic
session 1997-98. In the present case, once the finding of
fact recorded by the School Tribunal is accepted that the
appointment of the petitioner was on probation for a period of
two years, then, unless the Management proves a case
under Section 5(3) of the M.E.P.S Act, the employee would
attain deemed confirmation in service after the expiry of two
years period of probation. The decision is, therefore, not
applicable to the facts of the present case.
14] So far as the question of backwages is
concerned, the decision of this Court in case of Progressive
Education Society, Hinganghat and others vrs. Nitin
Krishnarao Nimbalkar and others, reported in 2006 (4)
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Mh.L.J 747, has been relied upon by Shri Shende, the
learned counsel for the petitioner, to claim full backwages.
The portion relevant relied upon by him is contained in
para 9, which is reproduced below.
"9. The decision of the Apex Court, therefore,
clearly lays down that the order regarding the
payment of backwages would depend on the facts
and circumstances of each case and it should not
be ordered mechanically without application of
mind. In a case where the termination of services in
exercise of powers under section 5(3) of the said
Act is challenged before the competent authority, it
would be the obligation of the Management to justify
the action taken by it in that regard. Failure on the
part of the Management in that regard would
obviously disclose lack of bona fide in terminating
the services of the probationer. It would evidently
disclose that the employee was forbidden from
performing and attending to his dues not on account
of any mistake on the part of the Management. In
such circumstances, when the employee is
forbidden from performing his duties for no fault on
his part and entirely on account of arbitrary action
on the part of the Management, certainly the
employee would be entitled for the entire
backwages."
Similar view has been taken in the case of Deepali Surjuse
vrs. Kranti Junior Adhyapak Mahaviddyalaya (D.Ed.) and
others reported in (2013) 10 SCC 324. However, keeping in
view the facts and circumstances of the case, the petitioner
is held entitled to the backwages to the extent of 30% of the
total amount of backwages due and payable.
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15] In the result, writ petition is allowed. The
judgment and order dated 03.09.2007 passed by the School
Tribunal is modified by directing reinstatement of the
petitioner in service with continuity in service and all other
consequential benefits as are available in law, within a period
of 30 days from the date of this order, along with 30%
backwages due and payable to the petitioner. Appeal No. 67
of 1999 filed by the petitioner before the School Tribunal is
allowed. No order as to cost.
JUDGE
Rvjalit
