Bombay High Court
Manisha Gangadhar Gadewad vs Vasantrao Naik Shikshan Prasarak ... on 21 July, 2016
Bench: R.V. Ghuge
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.1158 OF 2016
Manisha d/o Gangadhar Gadewad,
Age-36 years, Occu-Nil,
R/o Plot No.9, Parimal Housing Society,
Garkheda Parisar, Aurangabad, PETITIONER
Dist. Aurangabad
VERSUS
1. Vasantrao Naik Shikshan Prasarak Mandal
Jalna Road, Aurangabad,ig
Through its President,
Jalna Road, Aurangabad,
Dist.Aurangabad,
2. Vasantrao Naik Shikshan Prasarak Mandal
Jalna Road, Aurangabad,
Through its Secretary,
Jalna Road, Aurangabad,
Dist.Aurangabad,
3. Vasantrao Naik Mahavidhyalaya (Jr.College),
Jalna Road, Aurangabad,
Through its Principal
Jalna Road, Aurangabad,
Dist.Aurangabad,
4. The Deputy Director of Education,
Aurangabad Division, Aurangabad,
Dist.Aurangabad RESPONDENTS
Mr.S.M.Vibhute, Advocate for the petitioner.
Mr.S.S.Jadhavar, Advocate for respondent Nos. 1 to 3.
Mr.P.G.Borade, AGP for respondent No.4.
( CORAM : RAVINDRA V. GHUGE, J.)
DATE : 21/07/2016
ORAL JUDGMENT :
khs/JULY 2016/1158-d
1. Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
2. The petitioner is aggrieved by the judgment and order dated
17/10/2015 by which Appeal No.42/2012 filed by the petitioner has
been dismissed.
3.
This petitioner was before this Court earlier in WP
No.10664/2014 for challenging the judgment of the Tribunal dated
24/09/2014, by which the same appeal was earlier dismissed. After
hearing the parties and after considering the peculiar facts of the
case, this Court had recorded the submissions of the learned
Advocates in paragraph No.2(a) to 2(d), which read as under :-
"(a) Whether, the termination of services by way of
retrenchment under Rule-27 of the MEPS Rules, 1981 on the
basis of surplusage/ seniority, would affect the members of the
Backward Classes or not. As such, the applicability of Rule
27(e) of the MEPS Rules, 1981 has not been properly considered
by the School Tribunal in deciding the appeal of the Petitioner.
(b) It is conceded that the Petitioner was on unpaid
maternity leave from 01.04.2010 to 30.09.2010 for a period of
180 days. Rule 16(14) r/w Rule 16(15) & 16(16) would,
therefore, result in the Petitioner being entitled only for 90 days
maternity leave and as such, remaining portion of 90 days are
khs/JULY 2016/1158-d
to be debited from the period of 3 years for which she was
appointed initially.
(c) Whether, by applicability of Rule 16(15) and 16(16)
of the MEPS Rules, 1981, after debiting 90 days from the period
of three years of the Petitioner, would mean that the Petitioner
has not completed the three years period.
(d) Whether, in the light of the correspondence
between the Respondent/ Institution by it's letter dated
26.08.2011 addressed to the Respondent No.4/ Deputy Director
of Education and the response of Respondent No.4 by
communication dated 12.12.2011, would indicate that there is
no workload available for the Petitioner for the subject of
Biology and whether, it would amount to abolition of the post."
4. In view of the above, the appeal was remitted back to the
School Tribunal for considering the above issues. Now, by the
impugned judgment, the School Tribunal has dismissed the appeal.
5. I have heard the learned Advocates for the petitioner and the
respondent/Management at length. In my view, two issues arise
which are germane to the cause of action. Firstly, as to whether the
Management was constrained to abolish one post in the biology
subject prior to the petitioner becoming permanent in employment.
Secondly, whether the petitioner can be said to be deemed permanent
by virtue of which the Management would be compelled to dispense
khs/JULY 2016/1158-d
with the services of a permanent employee from the open category so
as to accommodate the petitioner who belongs to the Scheduled
Tribe, pursuant to the abolition of one post.
6. It is undisputed that the petitioner was on maternity leave from
01/04/2010 to 30/09/2010, which is a period of 180 days. The
petitioner was appointed in the academic year 2008-2009. She
would have normally completed her probation period of 3 years on
26/08/2011 in the academic year 2011-2012.
7. Rule 16 (14, 15 and 16) of the M.E.P.S. Rules 1981 are relevant
and the same are reproduced as below :-
"(14)(a) Subject to the provisions of sub-rule(16) maternity leave
shall be granted to a female employee who has put in more than
one year's service. It may be granted for a period not exceeding
ninety days from the date of its commencement.
Explanation : In the case of a female employee entitled to
vacation, if the date of confinement falls during the vacation, the
maternity leave shall commence from the date of confinement
and it shall run concurrent with the vacation.
(b) The application for maternity leave from an employee shall
invariably be supported by medical opinion as to the probable
date of confinement, and her undertaking to the effect that she
shall communicate the date of confinement supported by a
khs/JULY 2016/1158-d
medical certificate. In case of lower grade staff in which
insistence on a regular medical certificate is likely to cause
hardship, the authority competent to grant leave may accept
such certificate as it may deem sufficient.
+ Earlier sub-rule (14) is relettered as clause (a) of that
sub-rule and thereafter "Explanation" and clause (b) is
added by Not. No. PST/1083/194/SE-3-Cell, dated 20-12-
1984.
(15) Maternity leave under sub-rule (14) shall be granted on half
pay to an employee, who has put in more than one year's but
less that two years service before the date of commencement of
such leave. In the case of employee who has put in two year's
service or more on the date of commencement of such leave, she
shall be granted maternity leave with full pay. In case of a
female employee with less than one year's service she shall be
granted extraordinary leave for a similar period.
(16) Maternity leave shall not be debited to the leave account.
Leave of any other kind may be granted in continuation of
maternity leave, if the request for granting it is supported by a
medical certificate."
8. By virtue of the said rules, the sanctioned maternity leave for
90 days is not to be debited from the tenure of the petitioner. As
such, had she restricted her maternity leave in accordance with the
Rules, she would have completed her 3 years of probation on
26/08/2011 in the academic year 2011-2012. Since she availed of
khs/JULY 2016/1158-d
unpaid leave of 90 days beyond the 90 days maternity leave provided
by Law, she would have completed her probation on 26/11/2011.
9. The respondent points out the letter dated 26/08/2011 that
was addressed to the Deputy Director of Education for seeking
sanction to the staffing pattern for the academic year 2011-2012 to
the extent of the Jr.College. Since there was a reduction in the
strength of the students from 672 (standard 11 and 12) in the
academic year 2009-2010 to 606 (Standard 11 and 12) in the
academic year 2011-2012, the weekly teaching hours required were
reduced to 104.15. The fall of students by 66 therefore resulted in the
reduction of one post in the biology subject.
10. The above fact situation was conveyed to the Deputy director,
Education seeking guidance as regards the future of the petitioner
and the staffing pattern. It appears quite evidently that the
respondent/Management avoided acting in haste and showed
sympathy towards the petitioner by not terminating her services
straight away, but by seeking guidance from the Deputy Director of
Education. It appears that the fact that she had taken maternity
leave from 01/04/2010 till 30/09/2010 was also kept in mind.
khs/JULY 2016/1158-d
11. There is no dispute that the Deputy Director of Education
sanctioned the staffing pattern for the academic year 2011-2012 vide
its communication dated 12/12/2011. The reduction of one post in
the biology subject was also approved. The name of the petitioner as
a teacher in the biology subject was therefore not mentioned in the
list sanctioned by the Deputy Director. There is also no dispute that
5 positions as teachers in biology for the Jr.College are occupied by 5
permanent teachers.
12. The petitioner strenuously contends that since she was
terminated on 24/12/2011, it needs to be presumed that she is
deemed permanent on the post of a "Shikshan Sevak" and as such is
at par with the other 5 permanent teachers. Based on this
assumption, the petitioner contends that as on the date of
termination, she would be deemed to be a permanent teacher having
successfully completed the probation period of 3 years as a
"Shikshan Sevak". Therefore, one of the permanent teachers from
the open category will have to make way to accommodate the
petitioner who is deemed permanent u/s 5 of the M.E.P.S.Act.
13. I am unable to accept the submissions of the learned Advocate
for the petitioner. The Management had realized that one post of
khs/JULY 2016/1158-d
teacher for biology was reduced and accordingly the staffing pattern
for the academic year 2011-12, which commences in June 2011, was
prepared and forwarded to the Deputy Director of Education. At the
stroke of commencement of the academic year 2011-2012, one post
was already abolished. The petitioner in fact could not have been
considered for conducting lectures in the biology subject as the post
itself was abolished in June 2011. The respondent / Management
would have been justified in terminating the services of the petitioner
in June 2011 itself.
14. Needless to state, as on 26/11/2011, the petitioner could not be
said to have attained the deemed status of a permanent teacher in
the light of the ratio laid down in the matter of Head Master, Amar
High school Aurangabad and another Vs. Lata d/o Gajanan
Suryawanshi, 2005(1) Mh.L.J.1150. Paragraph Nos.9 and 11 of the
said judgment read as under :-
"9. The above reasoning is manifestly erroneous and contrary to
the scheme of the Act as well as the Rules framed thereunder. It
is evident that the Tribunal failed to appreciate the ambit and
scope of sub-section (2) and (3) of Section 5 of the Act.
(2) Every person appointed to fill in a permane tvacancy shall
be on probation for a period of two years. Subject to the
provisions of sub-sections (3) and (4), he shall on completion of
khs/JULY 2016/1158-d
this probation period of two years shall be deemed to have been
confirmed.
(3) 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.
The teacher appointed on probation to fill in the permanent
vacancy would thus attain the status of being a deemed
confirmed teacher only on completion of the probationary period
of two years and as on 3-12-1997 when the notice of one month
was issued to the respondent No.1 she had not attained the
status of a deemed confirmed teacher by any stretch of
imagination. It is no doubt true that sub-section (3) of section (5)
provides for termination of service of a teacher on probation on
account of work or behaviour of the probationary being
unsatisfactory. This right could be exercised any time during the
said period of probation but after giving one month's notice or
salary of one month in lieu of notice. It is nobody's case that the
petitioner's work or behaviour was found to be unsatisfactory by
the management. The management received the communication
from the respondent No.2 stating that on account of reduction of
student's strength one division in the secondary section (9 th
standard) was found to be reduced and consequently, one
teacher would be surplus. As the respondent No.1 was the
junior most teacher in the secondary section and on probation
the Education Officer rightly advised the management to
discontinue the services of the respondent No.1 from 4-1-1998.
khs/JULY 2016/1158-d
11. If there is no vacancy available for confirmation of the
probationer on account of reduction in the strength of students,
the question of confirming the probationary service against a non
existing post cannot be conceived. It would be permissible in
given cases that such teachers would be required to be
discontinued even though their services during the probationary
period was found to be satisfactory so long as this
discontinuation is at the end or towards the end of the
probationary period. Section 5(3) of the Act has perhaps not
envisaged such a contingency but that does not mean that there
is a legal bar for discontinuation on completion of the
probationary period on account of non-availability of the posts.
If it is accepted that such a discontinuation is not permissible the
teachers on completion of the probationary period will have to be
made permanent against non-existing posts when it is well
established that availability of a permanent post is sine qua non
for regularization/confirmation of the service. The management
is admittedly running on aided school and the teacher's salary
goes from the exchequer which cannot be allowed to be
burdened for unjustifiable grounds. The factum of reduction of
divisions as well as the students during the academic year
1997-98 has not been disputed and even for the subsequent
academic years there has been no increase in the divisions of
any standard in the secondary school. It is required to be held
that on account of non-availability of a regular post as per the
staffing pattern approved by the Education Officer the
management is not required to confirm the probationer's service
even though the probationary period was satisfactory. The order
khs/JULY 2016/1158-d
dated 3-12-1997 was neither punitive nor stigmatic."
15. In the light of the peculiar facts as above, though the petitioner
was continued by the Management as a benevolent gesture despite
one position of teacher in biology having been abolished and
remaining five having been occupied by the permanent teachers, it
would amount to stretching the concept of "deemed confirmation"
u/s 5, too far.
16. The School Tribunal, by the impugned judgment, has
extensively dealt with all the issues in the light of the points framed
by this Court vide its order dated 11/03/2015. I do not find that the
impugned judgment could be termed as being perverse or erroneous.
17. This petition, being devoid of merit, is therefore dismissed.
( RAVINDRA V. GHUGE, J.)
khs/JULY 2016/1158-d
