Bombay High Court

Nitin Dilip Choudhary vs Mahatma Phule Vidya Prasarak ... on 31 August, 2016

Bench: R.V. Ghuge

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD

WRIT PETITION NO. 6196 OF 2015

Smt. Prajwala Bhatu Khalane
Age 37 years, Occ. Service
Assistant Teacher in Smt. T.T.
Khalane Mahajan High School and
Late Bapusaheb G.D.Mali Guruji

Junior College, Deopur, Dhule
R/o House No.62, Shrihari Colony,
Sakri Road, Taluka and
District Dhule. ..Petitioner

Versus

1. Mahatma Phule Vidya Prasarak
Sanstha, Deopur, Taluka and
District Dhule, through its

President.

2. Shri Tulsiram Tanaji Khalane
Maharaj High School and Kai.
Bapusaheb G.D.Mali Guruji

Junior College, Deopur, Dhule
through its Head Master.

3. The Education Officer (S),
Zilla Parishad, Dhule. ..Respondents

WITH
WRIT PETITION NO. 6200 OF 2015

Nitin Dilip Choudhary,
Age 31 years, Occ. Service

Assistant Teacher in Smt. T.T.
Khalane Mahajan High School and
Late Bapusaheb G.D.Mali Guruji
Junior College, Deopur, Dhule
R/o House No.13/14, Telephone Colony,
Air Port Road, Gondur Deopur,
Taluka and District Dhule. ..Petitioner

Versus

1. Mahatma Phule Vidya Prasarak

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Sanstha, Deopur, Taluka and
District Dhule, through its President.

2. Shri Tulsiram Tanaji Khalane
Maharaj High School and Kai.

Bapusaheb G.D.Mali Guruji
Junior College, Deopur, Dhule
through its Head Master.

3. The Education Officer (S),

Zilla Parishad, Dhule. ..Respondents

WITH
WRIT PETITION NO. 7049 OF 2015

Smt. Bhagyashri Devidas Mali,
Age 30 years, Occ. Service

Assistant Teacher in Smt. T.T.
Khalane Mahajan High School and
Late Bapusaheb G.D.Mali Guruji

Junior College, Deopur, Dhule
R/o House No.5/B, Telephone Colony,
Air Port Road, Gondur Deopur,
Taluka and District Dhule. ..Petitioner

Versus

1. Mahatma Phule Vidya Prasarak
Sanstha, Deopur, Taluka and
District Dhule, through its
President.

2. Shri Tulsiram Tanaji Khalane
Maharaj High School and Kai.
Bapusaheb G.D.Mali Guruji
Junior College, Deopur, Dhule

through its Head Master.

3. The Education Officer (S),
Zilla Parishad, Dhule. ..Respondents
...
Advocates appearing for :
Petitioners : Shri S.R.Barlinge and Shri S.R.Kolhare
Respondents 1 & 2 : Shri V.D.Sapkal
Respondent 3 : Shri P.G.Borade, AGP
...

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CORAM : RAVINDRA V. GHUGE, J.

Reserved on : August 12, 2016 Pronounced on : August 31, 2016

...

JUDGMENT :-

1. Heard.

2. Rule.

By consent, Rule is made returnable forthwith and heard

finally.

4. In the first petition, the petitioner has challenged the

judgment and order dated 31.12.2014, delivered by the School

Tribunal, by which, her Appeal No.77 of 2012 has been dismissed.

5. In the second petition, the petitioner is aggrieved by the

judgment and order dated 31.12.2014, by which his Appeal No.79 of

2012 has been dismissed by the School Tribunal.

6. In the third petition, the petitioner is aggrieved by the

judgment and order dated 31.12.2014, by which her Appeal No.78 of

2012 has been dismissed by the School Tribunal.

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7. In all these Appeals, the petitioners were working as 'Shikshan

Sevaks' and on the stroke of the completion of their probation period,

all of them have been terminated.

8. The respondent / management is the same educational

institution and the same college. Hence, by the consent of the

parties, all these matters have been heard together.

9. For the sake of brevity, all the petitioners in these petitions are

being referred to as the 'Teachers' and the respondent / institution is

being referred to as the 'employer'.

10. I have heard the learned Advocates for the respective sides and

have gone through the petition paper book with their assistance.

11. All the Teachers have applied pursuant to the advertisement

dated 17.11.2009, by which, applications were sought for

appointment of four 'Shikshan Sevaks'. By separate appointment

orders , all the Teachers were appointed as 'Shikshan Sevaks' in the

Secondary School, on probation. The first teacher was appointed

from 3.12.2009 to 2.2.2012, second teacher was appointed from

2.12.2009 till 1.12.2012 and the third teacher was appointed from

1.12.2009 to 30.11.2012.

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12. The contention of the Teachers is that at the stroke of

completion of their probation period, merely because there was a

change in management, they were terminated. Their services were

approved by the order of approval placed on record. The only reason

cited was that their appointments were illegally made and hence,

their probation period has been brought to an end, when, each of

them completed the said period.

13. Shri Barlinge, learned Advocate for the Teachers strenuously

submitted that the advertisement clearly prescribes the educational

qualification, which a candidate was required to possess. All the

three candidates possessed the qualification and hence were

appointed as 'Shikshan Sevaks'. Since the dispute in the management

was pending before the appropriate authorities, the Head-master had

officiated as the School Committee. Since the management was

engrossed in the dispute, the Head-master had proceeded to initiate

the process of selection and upon making the necessary

appointments, the proposals of these Teachers were forwarded for

grant of approval. They were approved. All the three Teachers

performed their duties on the basis of the approval. Their salaries

were paid as per the Rules.

14. It has been further submitted by the Teachers that their

performance as probationers was without any blemishes. The

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management has not issued any memo or warning or an intimation

indicating to the Teachers that their performance was not satisfactory

and that they ought to improve their conduct.

15. On 5.11.2012, the change report of one group of the

management was accepted. The said body took charge of the

functioning of the institution on 6.11.2012. Two years prior thereto,

the same group had preferred Regular Civil Suit No. 92 of 2010 before

the Court of the learned Civil Judge S.D., seeking quashing of the

appointments of these Teachers, on 26.4.2010. On 26.11.2012, after

19 months of the pendency of the suit, the said body withdrew the

suit unconditionally from the Civil Court, thereby, giving up it's

challenge to the appointments of the Teachers. On 29.11.2012,

which is three days after the unconditional withdrawal of the suit,

the termination orders were issued to the Teachers. Rule 15 of the

the Maharashtra Employees of Private Schools (Conditions of Service)

Rules, 1981 ("MEPS Rules" for short), has not been followed.

16. The Education Officer has filed an affidavit-in-reply. It is stated

in paragraph No.5 that since there was a dispute in the management,

the Head-master in his capacity as the Secretary of the School

Committee, had published an advertisement for filling up the posts of

teachers, which were vacant due to retirement of some teachers.

Considering the interest of the students and to ensure that their

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teaching curriculum is not affected, the Education Department

granted approval to the appointments of these Teachers as 'Shikshan

Sevaks' for a period of three years. The affidavit further submits that

only because the other group has taken charge, that the services of

these Teachers have been abruptly terminated.

17. It also emerges from the record that after these Teachers were

appointed by the Head-master, pursuant to his retirement, the

succeeding Head-master has appointed seven teachers in a similar

fashion on 6.1.2012. The employer in it's Written Statement has not

denied that seven other teachers were appointed in an identical

manner and the employer led by the group, whose change report was

accepted, has not touched their services.

18. The petitioners have placed reliance upon the following

judgments:-

(1) Ram Avadh Mahel Pal Vs. Shivdutta Educational Trust [2007 (6) Mh.L.J.659],

(2) Progressive Education Society Vs. Rajendra and another [2008 (2) Mh.L.J. 715],

(3) Vinayak Vidhyadayini Trust Vs. Aruna T. Prabhu [2011 (1) Mh.L.J. 550],

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(4) Bhartiya Buddha Dhamma Dnyan Vidyalaya Vs. Presiding Officer, school Tribunal, Nagpur [2010 (3) Mh.L.J. 177],

(5) D.G.Ruparel College Vs. State of Maharashatra [1998 (2)

CLR 402], and

(6) Gajanan Uddhaorao Garole Vs. State of Maharashatra

[2009 (5) Mh.L.J. 300].

19. The learned Advocate for the employer Shri Sapkal submits that

the Resolution, which was passed by the management for appointing

these Teachers does not bear the signature of the Chairman. The

approval granted by the Education Officer does indicate that the

appointments of these Teachers had been approved for a period of

three years, which was pursuant to the proposal sent by the employer

seeking approval to their appointments. Similarly, the appointment

of the six other teachers by the succeeding Head-master has also

been approved by the Education Officer. Yet, the employer has

terminated the services of these three Teachers, because it felt that

their appointments were illegal and their work was not satisfactory.

20. Shri Sapkal, learned Advocate has contended that whenever

there is a dispute in the management and the office bearers are not

discharging their duties, yet the Head-master will not get the

authority to make appointments. He has placed reliance upon the

affidavit in reply to contend that though the said body was elected on

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2.11.2008, it's change report was accepted on 5.11.2012. The

Resolution passed by the management was suspicious and the same,

therefore, deserves to be ignored.

21. He, however, is unable to dispute that after the appointments

of these Teachers were made, their services were approved, they

discharged their duties by imparting education and their salaries

were paid on month to month basis. The management elected on

2.11.2008, was available in the institution premises but it did not

take any objection to the appointments of these Teachers and did not

protest or lodge any complaints to any authority with regard to their

appointments.

22. Shri Sapkal further submitted that the employer realized that

the work of these teachers was not satisfactory. There were no

vacancies for the OBC and all these teachers belong to OBC. Their

original documents as regards selection and appointment orders are

not traceable.

23. Having considered the submissions of the learned Advocates, I

have gone through the petition paper books, the impugned judgments

and the reports cited.

24. There is no dispute that the advertisement was published and

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it was pursuant to the advertisement that these teachers had applied

for appointments. The Education Officer has stated in his affidavit

that the Head Master was permitted to proceed with the appointment

of Shikshan Sevak considering that several teachers have retired and

the ongoing dispute between the two groups of the employer would

have an adverse effect on the educational curriculum and the

students. It was in this backdrop that these teachers were

appointed.

25.

The same employer has appointed 6 other teachers by

following the same procedure. Their services have not been

disturbed by this employer. It is, therefore, apparent that the

employer has picked and chosen these 3 teachers for termination. It

is not the case of the employer that these teachers are not holding

the requisite qualifications. Nevertheless, their qualifications were

before the Tribunal and despite the copies of their marks memo

indicating their educational qualifications being available to the

Tribunal, it has concluded, very strangely, that the qualifications of

the teachers are suspicious.

26. The Tribunal has sustained the termination of the teachers on

the ground that the advertisement was published in 'Saptahik

Bawankashi'. It lost sight of the fact that 'Saptahik Bawankashi' is

included in the list of publications available with and approved by the

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Education Department in which the advertisements can be published.

The employer, upon going through the list, cannot dispute that

'Saptahik Bawankashi' was in the list of publications and the

subsequent 6 teachers were also appointed by publishing

advertisement in the same newspaper.

27. The School Tribunal has completely lost sight of the fact that

the employer had indulged in legal victimization by picking these 3

teachers for termination after the conclusion of their probation

periods and the identically placed 6 other teachers were not

disturbed. The School Tribunal could not have ignored this act of

victimization of the employer.

28. Rule 15 of the 1981 Rules pertains to the writing of confidential

reports. Rule 15 reads as under :-

"(1) The confidential reports shall be written annually in the respective Form in Schedule "G". The reporting authorities in respect of the employees and the Head shall be the Head and

the Chief Executive Officer respectively. Confidential reports shall be written in respect of the employee of the Head who had worked for six months or more during an academic year commencing from June. IF the Head or a teacher is the Secretary of the Management the confidential report in his respect shall be written by the President of the Management.

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(2) The Confidential reports so written in respect of the employees and the Head shall be reviewed by the Chief

Executive Officer and the President of the Management, respectively. The Confidential report of the Head or a

teacher written by the President shall be reviewed by the Managing Committee.

(3) The respective reporting authority shall arrange to Communicate confidentially in writing adverse remarks, if any, to the concerned employee or the Head, as the case may

be, before the end of August every year.

Representation, if any, from an employee against the adverse remarks communicated to him in accordance with sub-

rule (3) above shall be decided by the School Committee. Similar representation, if any, from the Head shall be decided by the Managing Committee.

(5) Failure to write and maintain Confidential reports and to communicate adverse remarks to the employees within the period prescribed in sub-rule (3) shall have the effect that the

work of the employee concerned was satisfactory during the period under report.

(6) Performance of an employee appointed on Probation shall be objectively assessed by the Head during the period of his probation and a record of such assessment shall be maintained."

29. Rule 15(6), therefore, mandates that the performance of a

probationer shall be objectively assessed during the period of

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probation and record of such assessment needs to be maintained. For

these reasons, the Hon'ble Apex Court in the matter of Progressive

Education Society and another Vs. Rajendra and another [(2008)3 SCC

310], has concluded that the termination of a probationer would

stand vitiated for violation of Rule 15(6). Paragraph Nos. 13, 14 and

16 of the Progressive Education Society (supra) reads as under :-

"13. On a consideration of the submissions made on behalf of

the respective parties, the main issue which, in our view,

requires determination in this appeal is whether the provisions of Rules 14 and and, in particular Sub-rule (6) of

Rule 15 of the MEPS Rules, 1981, would control the powers vested in the Management of the School under Sub-section (3) of Section of the MEPS Act. The law with regard to

termination of the services of a Probationer is well established and it has been repeatedly held that such a power

lies with the Appointing Authority which is at liberty to terminate the services of a Probationer if it finds the performance of the Probationer to be unsatisfactory during

the period of probation. The assessment has to be made by the Appointing Authority itself and the satisfaction is that of the Appointing Authority as well. Unless a stigma is attached

to the termination or the Probationer is called upon to show cause for any shortcoming which may subsequently be the cause for termination of the Probationer's service, the Management or the Appointing Authority is not required to give any explanation or reason for terminating the services except informing him that his services have been found to be unsatisfactory.

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14. The facts of this case are a little different from the

normal cases relating to probation and the termination of the services of a Probationer in that the satisfaction required to

be arrived at under Sub-section (3) of Section of the MEPS Act has to be read along with Rule 15 of the MEPS Rules, 1981 with particular reference to Sub-rule (6) which provides that

the performance of an employee appointed on probation is to be objectively assessed by the Head during the period of his probation and a record of such assessment is to be maintained.

If the two provisions are read together, it would mean that

before taking recourse to the powers vested under Sub-section (3) of Section of the MEPS Act, the performance of an employee appointed on probation would have to be taken into

consideration by the School Management before terminating his services.

15. .........................

16. This brings us to the next question regarding the sufficiency of the materials before the School Management

while purporting to pass the order of termination on 1 st August, 1994. As has been discussed, both by the School Tribunal and the High Court, the Confidential Report which

has been produced on behalf of the School Management does not inspire confidence on account of the different dates which appear both on Part-I and Part-II of the said Report. Part-I of the Self-Assessment Form gives the particulars of the concerned teacher and the remarks of the Reporting Authority, namely, the Head Mistress of the School. The date in the said

Part is shown as 4th July, 1994, whereas the date at the end of

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Part-II, which is the form of the Confidential Report giving

details of the teacher's performance, is dated 24 th June, 1994,

which appears to be in line with the date given of the forwarding letter written by the Head Mistress to the

Secretary of the Society. To add to the confusion created by the different dates on the form, there is a third date which appears on Part-I of the Self-Assessment Form which shows

that the documents were presumably forwarded to the

Management of the School on 6th August, 1994, which is a date which is prior to the date of termination of the services of the

Respondent No. 1, namely, 1st August, 1994."

30. It also cannot be ignored that the same employer, which was

elected on 02/11/2008 were watching the affairs of the Institution

till their change report was accepted on 5.11.2012, had preferred

RCS No.92/2010 praying for quashing of the appointment orders of

the petitioners. The said suit was unconditionally withdrawn on

26.11.2012 thereby giving up the challenge to the appointment of the

teachers. However, within 3 days thereafter, the 3 teachers were

disengaged by a cryptic Resolution that their performance is not

satisfactory, in the total absence of any assessment in any form

whatsoever of their 3 years of probation period.

31. Shri Sapkal has placed reliance upon the judgment in the Rayat

Shikshan Sanstha case (supra). The same would not be applicable

since the approval granted in the said case was with regard to the

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temporary appointment of the appellant.

32. He has further relied upon the judgment of this Court in the

matter of Ashok Asramji Gavhane (supra). In the said case, the Court

concluded that the petitioner undoubtedly was not a qualified

person. In the said case, the appointment order was signed by a

person who claimed to be the President of the Trust. This Court,

therefore, dismissed the petition and sustained the judgment of the

Tribunal. However, in the instant case, this management/employer

has chosen only these 3 teachers for termination and in identical

circumstances continued 6 other teachers.

33. He has further relied upon the judgment of this Court in the

case of Vidya Bharti (supra) wherein the appointments of the

employees were only for a limited period and there was no

advertisement published. Therefore, this Court interfered with the

matter and allowed the petition of the employer. The facts of these

three cases in hand clearly indicate that the teachers were duly

qualified and were appointed pursuant to the advertisement, coupled

with the fact that similar other six teachers, who were selected after

almost two years in an identical manner, were retained by the

management and they have been confirmed.

34. The learned Division Bench of this Court, by placing reliance

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upon the judgment of the Honourable Apex Court in Progressive

Education Society (supra), in the case of Vinayak Vidhyadayini Trust

Vs. Aruna T. Prabhu [2011 (1) Mh.L.J. 550], concluded that the

termination of employment of a probationer on the ground of

unsatisfactory performance, cannot be sustained unless the said

decision is based on a proper assessment of the probationer's

performance. Paragraph Nos.13 and 15 of the said judgment read as

under:-

"13. It is true that as a general principle in service jurisprudence an employee is appointed on probation to test

his/her performance and suitability for the post appointed and if during this period of probation, the performance is found to be unsatisfactory, the employer has the right to

discontinue the employee on completion of the probationary

period and without assigning any reasons. It is also equally well settled that such an order of termination is not a stigmatic order and as per the contract of service or the terms

of appointment, the employer has such a right so that the exercise of such right would not amount to an illegal action on the part of the employer. Such an order will not by itself be a penal order and the period of probation furnishes a valuable

opportunity to the master to closely observe the work of the probationer. However, the MEPS Act is a special piece of legislation and Section 5(2) of the said Act states that every person appointed to fill a permanent vacancy shall be on probation for a period of two years and subject to the provisions of Sub-sections 3 and 4, he shall, on completion of his probation period of two years, be deemed to have been

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confirmed. As per Sub-section 3 of Section 5 of the MEPS Act, if in the opinion of the management, the work or behaviour of

any probationer during the period of his probation is not satisfactory, the management may terminate his services at

any time during the said period after giving him one month's notice or salary of one month in lieu of notice. Thus, the appointment on probation and the termination of the service

of the probationer are governed by the provisions of Sub- sections 2 and 3 of Section 5 of the MEPS Act. In addition, Rules 14 and 15 of the MEPS Rules, 1981, have elaborately set

out the procedure for the assessment of the probationer's

performance and writing of his confidential reports. When a special statute like the MEPS Act has provided for a specific procedure to be followed while terminating the employment

of a probationer on the ground of unsatisfactory performance, the said procedure is mandatory and non compliance thereof would vitiate the order of termination and the School Tribunal

will be fully justified to interfere with the same and set it

aside by directing reinstatement of the appointee/appellant.

14. ........................

15. Under Schedule 'G' to the MEPS Rules, various forms have been set out and are required to be filled in for the

teaching staff and they are, (1) Self-Assessment Form, (2) Confidential Report Form and (3) Reviewing Authority Remarks Form. Under Sub-rule 1 of Rule 15, confidential reports shall be written in respect of the teacher who had worked for six months or more during an academic year commencing from June and the confidential reports so written shall be reviewed by the Chief Executive Officer/President of the management. Whereas the confidential reports of the Head or a teacher

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written by the President shall be reviewed by the Managing Committee as per Sub-rule 2. The respective reporting

authority shall arrange to communicate confidentially in writing adverse remarks, if any, to the concerned employee

before the end of August every year and representation, if any, from any employee against the adverse remarks communicated to him, shall be decided by the School

Committee or the Managing Committee, as the case may be, as per the combine reading of Sub-rules 3 and 4. As per Sub- rule 5 failure to write and maintain confidential reports and

to communicate adverse remarks to the employee within the

period prescribed in Sub-rule 3 shall have the effect that the work of the employee concerned was satisfactory during the period under report. Further, as per Sub-rule 6 of Rule 15,

performance of an employee appointed on probation shall be objectively assessed by the Head during the period of his probation and a record of such assessment shall be

maintained.

The Supreme Court in the case of Progressive Education Society and Anr. v. Rajendra and Anr. : AIR 2008 SC 1442 had an occasion to consider the scheme of Section 5(3) of the MEPS

Act and Rule 15 of the MEPS Rules. It held that while Rules 14 and 15 of the MEPS Rules cannot override the provisions of Section 5(3) of the MEPS Act, it has to be said that the

requirements of Sub-rule 6 of Rule 15 would be a factor which the school management has to take into consideration while exercising the powers which it undoubtedly has and is recognized under the said section. It further held that there ought to be sufficient material to be brought by the school management before the Tribunal so as to support the order of termination passed at the end of the probationary period and such record must also inspire confidence being bona fide. Such

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material cannot be cooked up material and it must be genuine confidential records maintained from time to time and

communicated to the teacher. It is also clear from Sub-rule 5 of Rule 15 of the MEPS Rules, that failure to write and

maintain confidential reports and to communicate adverse remarks to the employee within the period prescribed in Sub- rule 3 shall have the effect that the work of the employee

concerned was satisfactory during the period under report. In the instant case, there was nothing brought on record to show that in the prescribed form, the confidential reports in

respect of respondent No. 1 were written and adverse remarks

were communicated to her so as to provide her an opportunity to submit her representation against the adverse remarks. In any case, the show cause notice dated 23/6/1995 would not

amount to compliance of Sub-rules 1 to 5 of Rule 15 of the MEPS Rules.

Even otherwise, the action of the management in issuing

show cause management withdrew the termination order

dated 29/4/1995 by its letter dated 15/6/1995 so as to make Appeal No. 73 of 1995 as infructuous and within about a week's time it issued the second show cause notice. The reply

to the said show cause notice submitted by the teacher was not taken into consideration. The management did not apply its mind to the allegations levelled against the teacher and

the veracity of these allegations was not examined on the basis of the reply submitted by her. In short, it was a stage managed action and it demonstrated the malice with which the management proceeded to issue second termination order dated 1/7/1995. In our considered opinion, the School Tribunal was fully justified in setting aside the order of termination dated 1/7/1995 for non compliance of the requirements of Rule 15 of the MEPS Rules and the learned Single Judge rightly

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confirmed the said decision. In the case of Mohammed Haji Saboo Siddik Institution and Ors. v. The State of Maharashtra

and Ors. (Supra), the Division Bench did not consider the implications of failure to maintain the confidential reports

under Rule 15 of the MEPS Rules and in any case in view of the decision of the Supreme Court in the case of Progressive Education Society (Supra), the said view of this Court in the

said case is no more a good law and, therefore, there is no reason to interfere in the concurrent findings recorded by the School Tribunal and the learned Single Judge in the instant

case."

35. In the light of the facts noted as above and the law laid down,

the impugned judgments of the School Tribunal are rendered perverse

and erroneous. The impugned judgments are, therefore, quashed

and set aside. The termination orders of these teachers are quashed

and the respective appeals filed by the petitioners are allowed by

granting reinstatement in service with continuity from the date of

their termination. Hence, these teachers shall be treated as

confirmed employees from the date of their terminations.

36. In so far as the claim for backwages is concerned, the

Honourable Supreme Court in the matter of Nicholas Piramal India

Ltd. Vs. Harising [2015 II CLR 468], has concluded that grant of 50%

backwages would be appropriate and reasonable for reducing the