Bombay High Court
Smt.Mangala Keshav Mule vs Ananda Khandu Baviskar & Ors on 22 July, 2016
Bench: R.V. Ghuge
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 584 OF 1997
Smt.Mangala d/o Keshav Mule,
Age : 36 years, Occupation : Nil,
R/o 80, Vithu Mauli,
Sudarshan Housing Society,
Chakkar Bardi Road, Dhule.
...PETITIONER
-VERSUS-
1 President,
Manav Samaj Unnati Mandal,
R/o Navjivan Nagar,
Near Phashi Pool, Dhule.
2 Secretary,
Manav Samaj Unnati Mandal,
Dhule. C/o Rajendra Chhatralaya,
Deopur, Dhule.
3 Head Mistress,
Manav Samaj Unnati Mandal
Sanshalit Primary School,
Raskarar Nagar, Chittod Road, Dhule.
4 Administrative Officer,
Municipal School Board, Dhule.
5 Deputy Director of Education,
Nashik Division, Nashik.
6 Presiding Officer,
School Tribunal, Nashik Region,
Behind Runanubandh Mangal
Karyalaya, Near Pay Unit Office,
Bombay-Agra Road, Nashik-422001.
7 The State of Maharashtra.
Copy to be served through
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G.P., High Court of Bombay,
Bench at Aurangabad.
...RESPONDENTS
...
Advocate for Petitioner : Shri R.R.Mantri h/f Shri R.B.Ade.
AGP for Respondents 5 and 7 : Shri N.T.Bhagat.
Advocate for Respondent 3 : Shri S.P.Brahme h/f Shri N.B.Suryawanshi.
Advocate for Respondent 4 : Shri P.S.Patil.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 22nd July, 2016
Oral Judgment :
The Petitioner is aggrieved by the judgment and order dated
27.11.1996 passed by the School Tribunal, Nashik by which Appeal
No.32/1996 filed by her was dismissed.
2 This petition was admitted on 17.02.1997.
3 I have heard the learned Advocates for the respective sides at
length on 19.07.2016, 20.07.2016, 21.07.2016 and today.
4 The submissions of Shri Mantri, learned Advocate for the
Petitioner, can be summarized as follows:-
(a) The Petitioner had passed her SSC when she was appointed
on 01.06.1987 as an Assistant Teacher.
(b) For three years, she had not completed her postal Diploma in
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Education (D.Ed.) which was to be completed by
correspondence course.
(c) Her first application for being admitted to the postal D.Ed.
course is dated 21.01.1991 which was rejected by Respondent
No.5/ Deputy Director of Education.
(d) The Petitioner challenged the order of the Deputy Director by
filing R.C.S. No.202/1992.
(e) By judgment dated 29.04.1995, the said Civil Suit was
dismissed.
(f) She preferred Regular Civil Appeal No.101/1995 before the
learned District Judge, which was allowed by the judgment
dated 12.04.2001 and the Petitioner was permitted to
complete her postal D.Ed. course.
(g) Prior thereto, the Petitioner had preferred Writ Petition
No.2812/1996 before the learned Division Bench of this court
making out the grievance with relation to admission to the
postal D.Ed. course.
(h) The Management informed the Court that the Petitioner is not
in service from 30.04.1991 as she has been terminated.
(i) This Court, therefore, dismissed the said petition by order
dated 16.07.1996.
(j) The Petitioner completed her D.Ed. on 04.07.2003.
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(k) False document dated 20.04.1991 was created by the
Management so as to project a picture that the Petitioner was
disengaged from 30.04.1991 after having worked for only
one year from 01.06.1990 to 30.04.1991.
(l) The document dated 02.05.1991 placed on record before the
School Tribunal indicates that the then Headmistress
Smt.Savita Vinayak Bhoite was terminated and the Petitioner
was appointed as an Incharge Headmistress in her place.
(m) The order of termination was never served upon the
Petitioner.
(n) Actual appointment order dated 01.06.1987 would indicate
that the Petitioner was appointed from June, 1987 onwards.
(o) There is no dispute that she has worked from June, 1987 till
30.04.1991 and is, therefore, deemed confirmed in service.
(p) The Management did not participate in the proceedings
before the School Tribunal in the appeal preferred by the
Petitioner and no Written Statement was filed.
(q) Though the Petitioner did not complete her D.Ed. within three
years from the date of appointment, she cannot be blamed for
the same as the Deputy Director of Education did not grant
her permission for the postal D.Ed. course.
(r) The judgment of the learned District Judge in the regular civil
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appeal by which the suit filed by the Petitioner was allowed,
would indicate that the action of the Deputy Director of
Education refusing permission to the Petitioner to complete
her postal D.Ed., was illegal and she has practically lost her
entire career.
(s) By the action of the Deputy Director of Education which is
held to be illegal by the judgment of the learned District
Judge, an irreparable loss, serious prejudice and manifest
inconvenience has been caused to the Petitioner.
(t) Mrs.Bhoite, who is presently working as Headmistress, has
filed the affidavit in reply and has admitted in the said reply
in paragraph 7 that she was also appointed in 1987 and her
services came to be approved in 1990 as a trained teacher
only after she has completed her D.Ed. in May, 1990.
(u) Schedule F Category-G of the MEPS Rules, 1981 r/w Note-2
indicates that the D.Ed. course is to be completed within two
years only for the purposes of seniority which would then
date back to the appointment of the Petitioner.
(v) The Petitioner, no doubt, was only SSC when she was
appointed and Schedule-B of the MEPS Rules, 1981 would
indicate that an SSC candidate can be appointed as an
Assistant Teacher and can continue as such until she
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completes D.Ed. upon which her services would be approved
from the date of her first appointment.
(w) Since the Petitioner is not at fault in relation to the failure to
complete her D.Ed. before her termination, her termination is
rendered illegal and as such, she deserves to be reinstated in
service with continuity and full back-wages from May, 1991.
(x) The Petitioner has another about 18 months remaining for her
attaining the age of superannuation.
(y) The impugned judgment of the School Tribunal is perverse
and erroneous and therefore, this petition under Article 227
of the Constitution of India deserves to be allowed in the
supervisory jurisdiction of this Court.
(z) The Petitioner relies upon paragraphs 14, 16, 17 and 26 of
the judgment of this Court in the matter of Sanjay Namdeo
Mutha vs. Director, Maharashtra Educational Research and
Training Institute, 1996(1) BCR 656 : 1995 (2) Mh.L.J. 824.
5 Shri Brahme, learned Advocate appearing on behalf of the
Respondent/ Management, has strenuously defended the impugned
judgment. His contentions can be summarized as under:-
(a) The Petitioner was not qualified to be appointed as an
Assistant Teacher to the post of primary school teacher in the
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light of the prescribed qualifications set out below Schedule-B
of the MEPS Rules, 1981 which mandates that a candidate
must have passed her SSC examination or matriculation
examination or Lokshala examination or any other
examination recognized as such by the Government and must
acquire primary teachers certificate examination or diploma
in education examination.
(b) Since the very appointment of the Petitioner is illegal, there is
no question of deemed confirmation of the Petitioner after
completion of two years.
(c) The Petitioner was not appointed by following the due
procedure laid down in law.
(d) There was no advertisement, no interviews and no selection
process undertaken by the Management when the Petitioner
was appointed for one academic year from 01.06.1990 till
30.04.1991.
(e) Her appointment on 01.06.1987 was equally illegal as there
was no procedure adopted by the Management for causing a
lawful selection.
(f) The Management cannot be held responsible for the refusal of
the Deputy Director of Education in granting permission to
the Petitioner to complete her postal D.Ed. course.
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(g) The Management received recognition for it's primary section
only on 23.05.1988.
(h) Considering that the regular selection process was not
followed while appointing the Petitioner, would, therefore,
render the Petitioner disentitled for seeking deemed
confirmation under Section 5 of the MEPS Act, 1977.
(i) In 1987, the School was not recognized as a private school as
is defined under Section 2(20) of the MEPS Act, 1977.
(j) After June, 1985, considering the effect of clause (4) below I
under Schedule-B of the MEPS Rules, 1981, any Management
was not permitted to appoint any SSC candidate until the
candidate had acquired the prescribed qualification.
(k) It cannot be explained as to why and how the order dated
02.05.1991, after the Petitioner was terminated on
30.04.1991, was issued thereby, terminating Mrs.Bhoite as
Headmistress and appointing the Petitioner as an Incharge
Headmistress.
(l) The then President Mr.Baviskar had issued the said order on
02.05.1991, unauthorisedly.
(m) It is not the case of the Petitioner that she continued in
employment after 30.04.1991 as an incharge Headmistress of
the school.
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(n) All untrained teachers similarly situated as like the Petitioner
were terminated/ removed in 1991 and thereafter, trained
teachers who were legally eligible to be appointed, were so
appointed in 1993.
6 Shri Brahme has placed reliance upon the following
judgments:-
(1) Secretary, State of Karnataka vs. Umadevi and others, AIR
2006 SC 1806 : 2006(4) SCC 1.
(2) Priyadarshini Education Trust vs. Ratis (Rafia) Bano d/o Abdul
Rasheed, 2007(6) ALL M.R. 238.
(3) Chandramani Devraj Tiwari vs. The Secretary, Smt.R.B.Tiwari
Sanskrutik Kendra, 2008(3) ALL M.R. 138.
(4) Rayat Shikshan Sanstha vs. Yeshwant Dattatraya Shinde,
2009(5) ALL MR 151.
(5) Jaimala Bhaurao Ramteke vs. Presiding Officer and others,
2009(5) Mh.L.J. 333 : 2009 BCI 101.
(6) Tanaji Madhukar Barbade vs. State of Maharashtra, 2011(1)
ALL MR 912.
7 Having considered the submissions of the learned Advocates
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as have been recorded herein above, it is an undisputed position that from
02.05.1991 till this date, the Petitioner is not in employment and has
about 18 months left for retirement. It is also undisputed that the
Petitioner has worked for a period of only four years with the
Management.
8 The litigating sides have placed reliance upon Rule 6 of the
MEPS Rules, 1981, Schedule B(I) and (II), which prescribe qualifications
for primary teachers and trained teachers and have referred to categories
G and H r/w Note-4 below Schedule-F of the MEPS Rules, 1981, which
read as under:-
"Rule 6. Qualifications of Teachers:-
The minimum qualifications for the posts of teachers
and the non-teaching staff in the primary schools,
secondary schools, junior colleges and junior colleges
of education shall be as specified in Schedule B:
Provided that, the Education Officer may allow
Managements to appoint untrained Science graduate
teachers for teaching Mathematics and Science
subjects or untrained Arts or Commerce graduates for
teaching other subjects in secondary schools in
exceptional circumstances, such as non-availability of
trained graduates. Such appointments shall, however,
be allowed on an year to year basis, on the clear
understanding that they shall have to obtain training
qualification at their own cost and further subject to
the condition that their services shall be liable for
termination as soon as trained graduate teachers
become available.
Provided further that the untrained graduate
appointed as a teacher after obtaining the permission
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from the Education Officer before the commencement
of the Maharashtra Employees of Private Schools
(Conditions of Service) Rules, 1981 and who
continues to be in service in any school on the date of
commencement of the Maharashtra Employees of
Private Schools (Conditions of Service) (Amendment)
Rules, 1984 shall, be continued in service on the
condition that he obtains the prescribed training
qualifications at his own cost before 01 st June, 1987,
unless he has already obtained such qualifications,
failing which his services shall be terminated."
"Schedule-B:-
I. Qualifications for Primary Teachers : Appointment to
the posts of Primary School Teachers (other than
special teachers- Drawing teachers) shall be made by
nomination from amongst candidates who have
passed SSC examination or Matriculation
examination or Lokshala examination or any other
examination recognised as such by Government and
the Primary Teachers Certificate examination or
Diploma in Eduction examination, or a Diploma in
Education (pre-primary of two years' duration)."
"II. Qualifications for trained Teachers in Secondary Schools
and Junior Colleges of Education:
(2) For Undergraduate Teachers:-
(i) A Diploma in Education of Nagpur and
Bombay Universities which is awarded two years
after Secondary School Certificate Examination.
(ii) A Secondary Teachers' Certificate of the
Education Department of Maharashtra State or the
Teachers' Diploma of any statutory University, if the
person holding it is appointed for the first time before
the 01st October, 1970 and continues to serve as a
teacher with or without break after that date.
(iii) A certificate in Physical Education recognised
by Government, if the person had acquired the said
qualification before the 31st May, 1971 and was
appointed on or before the 20th September, 1978.
(iv) A Diploma in Education (Primary) awarded by
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Government; or
(v) Any other equivalent diploma or certificate
approved by Government or Inter-University Board."
"Schedule F.
Category-G : Untrained Matriculates or holders of
equivalent qualification.
Category-H : All teachers other than those mentioned
in categories A to G.
Note 4: The categories mentioned above represent the
ladder of seniority and have been mentioned in
descending order."
9 It is equally undisputed that the Petitioner did not have D.Ed.
qualification and as a consequence of which, she has been terminated. The
qualifications for primary teachers reproduced above below Schedule-B
indicate that a primary teacher must have SSC qualification and must
have primary teachers certificate examination or Diploma in Education so
as to qualify for appointment as a primary teacher. The Petitioner has
contended that she has attained the deemed status of permanency in the
light of Section 5 of the MEPS Act, 1977.
10 Insofar as continuance of the untrained teacher is concerned,
reliance has been placed by the Petitioner on paragraphs 14, 16, 17 and
26 of Sanjay Namdeo Mutha judgment (supra), which read as under:-
"14. The argument regarding the policy laid down by the
State Government in favour of the reserved categories
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of S.C., S.T. and V.J.N.T. only cannot be accepted for
other reasons also. It is admitted position that till last
year, many untrained teachers from Open and O.B.C.
categories spread over the entire State and from all
regions were granted admission to the
Correspondence D.Ed. Course. This procedure to
admit candidates belonging to Open and O.B.C.
categories was followed since the inception of the said
Course till last year. The departure is made for the
first time in the year 1995 and tried to be supported
on the basis of certain statements appearing in the
policy Resolution dated 4th October, 1973. If that was
the policy of the State Government, then the
Government authorities in the Education Department
would not have granted approval to the services of the
persons belonging to Open and O.B.C. categories and,
especially in the cases of those who are untrained. Not
only the condition consistently is laid down to acquire
the qualification of D.Ed. within five years, but the
admissions are given for those untrained teachers in
the Correspondence D.Ed. Course, which indicates
that the authorities of the State Government are now
estopped from saying that it was the policy of the
State Government to provide the scheme of
Correspondence D.Ed. Course only in favour of those
reserved categories of S.C., S.T. and V.J.N.T. As we
have already pointed out, such policy cannot be spelt
out from the Resolution dated 4th October, 1973.
Even assuming that there was such a policy in the
undisclosed mind of the State Government, but the
disclosed mind has to be worked out on the basis of
the admissions granted to the candidates belonging to
Open and O.B.C. categories to the said course. The
conduct of the officers at different levels in giving
approvals to the appointments of Open and O.B.C.
category untrained primary teachers as against the
alleged policy of not making appointment after 31st
January, 1969 is sufficient to repeal the argument of
the learned A.G.P. The reference to the date, 31st
January, 1969, is, therefore, to a factual situation
and has nothing to do with the policy. In fact, such
appointments were not only granted approval, but
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such teachers were also allowed to acquire training,
by way of Correspondence D.Ed. Course.
16. If we go through the other Resolution, on record,
which is dated 20th April, 1989, in this connection,
there is nothing to indicate about such a policy.
17. Articles 14, 15 and 16 of the Constitution deal with
right to equality and of reasonable restrictions.
Admittedly, having regard to the resources of the
State, even accepting that there are only 3060 seats
available to which the candidates seeking admission
to the Correspondance D.Ed. Course can be admitted
every year, yet, in view of the policy of the State
Government laid down in the schedule for admission
this year, all the 3060 seats in the course are reserved
in favour of S.C., S.T. and V.J.N.T. categories. The
other candidates are totally excluded from the
admission to the Correspondance D.Ed. Course. Such
100 per cent reservation in the matter of acquiring
qualification is purely and patently arbitrary and has
no nexus with the object sought to be achieved by the
policy Resolution dated 4th October, 1973. In the said
Resolution, the broad policy of the State Government
was to give employment even to untrained persons
and to allow them to acquire qualification within five
years. Acquisition of the qualification within five
years is imposed and is a must except in certain cases,
such as hilly tracts and inaccessible areas, etc. The
policy is to impart training to untrained teachers by
way of Correspondence D.Ed. Course. Reading of the
Resolution as a whole indicates that the Government
was aware of the fact that there are untrained
teachers both from Open and O.B.C. categories as well
as in the reserved categories of Scheduled Caste,
Schedule Tribe and V.J.N.T. The purpose of
introducing the Correspondence D.Ed. Course is to
impart training to untrained teachers. The purpose
was not to train untrained teachers from any
particular category only; but the scheme was
formulated to give training to all such untrained
teachers, who were in service or who would be
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employed thereafter also, having regard to the large
number of employment opportunities, irrespectively of
the fact of any particular teacher belonging to any
particular category. The discrimination so made,
therefore, has no nexus with the object sought to be
achieved.
26. There are several petitioners, who had applied for the
Correspondence D.Ed. course right from the year in
which they were appointed, but they were not granted
admissions, either because of the lack of facility or
because of the large number of candidates from the
same school willing to complete the said course. The
petitioners could not get the qualification of D.Ed.
because of the circumstances beyond their control,
though all the while they have desired to acquire the
qualification. Some of the petitioners have repeatedly
applied for admission to the Correspondence D.Ed.
Course, but their claims for admission to the said
course were denied on one or the other ground, may
be for the grounds which are convenient to the
authorities and the managements; but the fact
remains that the petitioners, who were given
opportunity to acquire the qualification within 5
years, were denied such opportunity in the midst,
before expiry of 5 years period."
11 Apparently, this Court in Sanjay Mutha judgment (supra) has
considered the intent and object of the correspondence D.Ed. course so as
to enable the untrained teachers to acquire the qualifications and thereby,
gain an opportunity of becoming trained teachers and continue in
employment. The purpose of introducing the correspondence D.Ed. course
was to impart education to the untrained teachers and thereby, promote
the prospect of their confirmation in service as trained teachers.
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12 There is no doubt as well as no dispute that it was on account
of the order of the Deputy Director of Education that the Petitioner lost an
opportunity of completing her D.Ed. course by correspondence. The order
passed by the Deputy Director of Education refusing permission to the
Petitioner has not been placed on record. It is also undisputed that had the
Petitioner completed her D.Ed. by correspondence, she would have gained
an opportunity of becoming a trained teacher and would, therefore, have
been granted confirmation in service which would have changed the
entire course of her life and destiny. By the order of rejection at the hands
of the Deputy Director of Education, she has thus lost that opportunity.
The situation becomes more grim considering the fact that the learned
District Judge has allowed the regular civil appeal filed by the Petitioner,
concluding that the rejection of her application was illegal and thereby,
holding that she is entitled to complete her D.Ed. course by
correspondence.
13 Insofar as the claim for deemed confirmation in employment
is concerned, Shri Brahme has placed reliance upon paragraphs 36 and 38
of the Secretary, State of Karnataka vs. Umadevi (supra), which read as
under:-
"36. While directing that appointments, temporary or
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casual, be regularized or made permanent, courts are
swayed by the fact that the concerned person has
worked for some time and in some cases for a
considerable length of time. It is not as if the person
who accepts an engagement either temporary or
casual in nature, is not aware of the nature of his
employment. He accepts the employment with eyes
open. It may be true that he is not in a position to
bargain, not at arms length, since he might have been
searching for some employment so as to eke out his
livelihood and accepts whatever he gets. But on that
ground alone, it would not be appropriate to jettison
the constitutional scheme of appointment and to take
the view that a person who has temporarily or
casually got employed should be directed to be
continued permanently. By doing so, it will be
creating another mode of public appointment which
is not permissible. If the court were to void a
contractual employment of this nature on the ground
that the parties were not having equal bargaining
power, that too would not enable the court to grant
any relief to that employee. A total embargo on such
casual or temporary employment is not possible,
given the exigencies of administration and if imposed,
would only mean that some people who at least get
employment temporarily, contractually or casually,
would not be getting even that employment when
securing of such employment brings at least some
succor to them. After all, innumerable citizens of our
vast country are in search of employment and one is
not compelled to accept a casual or temporary
employment if one is not inclined to go in for such an
employment. It is in that context that one has to
proceed on the basis that the employment was
accepted fully knowing the nature of it and the
consequences flowing from it. In other words, even
while accepting the employment, the person
concerned knows the nature of his employment. It is
not an appointment to a post in the real sense of the
term. The claim acquired by him in the post in which
he is temporarily employed or the interest in that post
cannot be considered to be of such a magnitude as to
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enable the giving up of the procedure established, for
making regular appointments to available posts in
the services of the State. The argument that since one
has been working for some time in the post, it will not
be just to discontinue him, even though he was aware
of the nature of the employment when he first took it
up, is not one that would enable the jettisoning of the
procedure established by law for public employment
and would have to fail when tested on the touchstone
of constitutionality and equality of opportunity
enshrined in Article 14 of the Constitution of India.
38. When a person enters a temporary employment or
gets engagement as a contractual or casual worker
and the engagement is not based on a proper selection
as recognized by the relevant rules or procedure, he is
aware of the consequences of the appointment being
temporary, casual or contractual in nature. Such a
person cannot invoke the theory of legitimate
expectation for being confirmed in the post when an
appointment to the post could be made only by
following a proper procedure for selection and in
concerned cases, in consultation with the Public
Service Commission. Therefore, the theory of
legitimate expectation cannot be successfully
advanced by temporary, contractual or casual
employees. It cannot also be held that the State has
held out any promise while engaging these persons
either to continue them where they are or to make
them permanent. The State cannot constitutionally
make such a promise. It is also obvious that the
theory cannot be invoked to seek a positive relief of
being made permanent in the post."
14 Based on the said ratio, Shri Brahme submits that deemed
permanency cannot be granted to a candidate whose very induction in
employment was illegal. Since the Petitioner was not qualified to be
appointed as an Assistant Teacher primary, deemed confirmation would
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not aid her since her very appointment was illegal.
15 He has also placed reliance on paragraphs 9 and 11 of
Priyadarshani Education Trust judgment (supra), which read as under:-
"9. The gist of various cases relied upon by both the
counsel can be drawn as under.
In order to claim benefit of deemed
permanency, a teacher must be duly selected, he must
be appointed in clear permanent vacancy, his
appointment must not be for a fixed/limited period,
and preferably it ought to indicate that the
appointment is on probation. If and only if these
conditions are fulfilled, a teacher will be able to claim
deemed permanency on completion of service of two
years from the date of appointment on probation or
at least by an appointment fulfilling all above
conditions, even though the order may not specifically
indicate that he is appointed on probation.
In the matter at hands, it is the claim of the
teacher that she was appointed on probation and for
that purpose, she has relied upon order dated
13.6.1992 at Exhibit D, although it is her claim that
she is in continuous service since 1987. According to
the management, the order is not an order regarding
appointment on probation, but the same is an order
of appointment purely on temporary basis for one
academic year. It is also a question of debate whether
the teacher was "duly appointed."
In order to demonstrate that the order was
regarding appointment for a fixed period and also for
claiming that it was an appointment on probation,
both the learned Advocates have placed reliance upon
Exhibit D. Advocate Shri Salunke for the appellant
has pointed out that the order clearly indicates that it
was for academic year 1992-93 and it does contain a
clause that on expiry of the said period, the services of
the teacher shall stand terminated without requiring
any notice. As against this, Advocate Shri Kazi
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pointed out that clause in the order pertaining to
appointment on probation, which is in the form as
prescribed by schedule D, is not scored out and,
therefore, it must be said that the appointment was
on probation for a period of two years. As Advocate
Shri Salunke pointed out that if the appointment was
on probation, the teacher would not have accepted
fresh order at the beginning of each academic year,
Advocate Shri Kazi replied that no fresh appointment
order was issued for academic year 1993-94 and,
therefore, order dated 13.6.1992 must be taken as an
order of appointment on probation. Shri Kazi has
also relied upon other documents, such as, experience
certificate issued sometime in the year 1988 and also
a certificate, indicating the management having
accorded no objection to the teacher going for B. Ed.
course and details regarding salary which indicate the
teacher having been permitted to draw an increment.
Our query that the teacher must demonstrate
that she is duly appointed, in order to claim that her
appointment was on probation, although the teacher
has not come before this Court with support of copy
of advertisement in response to which she had
applied, or even claiming in the petition that the
advertisement had occurred in the newspaper; that
she had responded to it; that she was subjected to
competitive examination, screening test etc., Advocate
Shri Kazi pleaded that the teacher was duly
appointed as contended in the petition. In the
alternative, he submitted that the teacher does not
belong to reserved category and tried to demonstrate
from the rules that for open category candidate, there
is no need for issuing an advertisement or inviting
applications and holding competitive examination.
11. It was argued by Advocate Shri Kazi that Rule 9 is the
only rule, regarding the manner of appointment of
staff and, therefore, the procedure as contained in this
rule, must be taken as "in the manner prescribed" as
contemplated by Sub-section (1) of Section 5. He also
referred to Sub-rule (8) and pointed out that the the
said sub-rule makes a provision for advertisement of
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the vacancy in at least one newspaper having wide
circulation, when the management desires to fill in
the vacancies reserved for SC/ST/DTNT/OBC.
According to him, Sub-rule (3) makes no such
provision and, therefore, it must be inferred that
there is no necessity to issue an advertisement for the
purpose of filling up vacancies of open category.
We are unable to appreciate, much less accept,
such an argument. Referring to proviso to Sub-section
(1) of Section 5 of the Act, it is evident that, as soon
as there is vacancy, the management is required to
communicate with the Education Officer, Zilla
Parishad. The vacancy is to be filled in, from the list
of surplus persons maintained by the Education
Officer. This is the first indication of control of the
State over the recruitment and appointment of staff,
even of private schools. Even on reference to Sub-rule
(3) of rule 9, the candidate eligible for appointment
and desirous of applying for such post, is required to
apply in writing, by giving full details. We are unable
to visualise a possibility of deserving candidate
knowing about the vacancies in any private schools,
unless the school invites applications by
advertisement. The persons, who may learn about
vacancies without advertisement, may only be kith
and kins or those in close contact with the
management or at the most staff members. If
argument of Advocate Shri Kazi is to be accepted, it
will be tantamount to accepting that rule 9 is drafted
in such a manner as to promote nepotism, so far as
appointments of open category candidates to teaching
and non-teaching posts in private schools are
concerned. If the argument of Advocate Shri Kazi is to
be accepted, rule 9 will have to be read in a fashion,
where reserved category candidates are required to
enter the service by competing amongst themselves,
but an open category candidate may be in a position
to seek an appointment without competing.
Legislature could not have intended to prescribe a
manner of recruitment which would discriminate
between reserved and un-reserved categories in respect
of manner in which they can seek appointments. A
*22* 916.wp.584.97.sxw
legislation making it easier for a reserved candidate,
may be justified, in view of Article 15(4) of the
Constitution. But, a reverse position cannot be
justified by any line of argument.
Article 14 guarantees equality before law and
Article 16 gives equality of opportunity in the matter
of public employment. Article 16(1) reads;
16. Equality of opportunity in matters of public
employment. (1) There shall be equality of
opportunity for all citizens in matters relating to
employment or appointment to any office under the
State.
In case we are to accept the submission as
advanced by Advocate Shri Kazi, Rule 9 not only
creates a discrimination in the recruitment and
appointments of candidates between reserved and
unreserved categories (making it more difficult for the
reserved categories), but it also denies equal
opportunity for all citizens desirous of seeking
employment/appointment. In the absence of any
advertisement, only those favoured by nepotism will
be able to seek employment/appointments at the cost
of all equally placed and desirous candidates, who are
ignorant of such vacancies. Any procedure for
recruitment/appointment, which does not afford
equal opportunity to all eligible and deserving
candidates to compete for seeking appointment and
employment, must be seen and termed as
unconstitutional as being violative of Articles 14 and
16(1).
On reference to Rule 9 Sub-Rule 2, it can be
seen that appointments of teaching and non-teaching
staff are required to be done by the School Committee
and only the short term appointments in leave
vacancies, of a duration not exceeding three months
are permitted to be done by the Head, if so authorized
by the School Committee.
In this context, we may also refer to the text of
Sub-Section 2 of Section 5, which is already re-
produced hereinabove. From the opening part "every
person appointed to fill in permanent vacancy shall be
on probation for a period of two years...", it is evident
*23* 916.wp.584.97.sxw
that once a person is selected in the manner
prescribed and duly appointed, the Management or
the School Committee has no option. Such a person
must be appointed on probation. If there is a
permanent vacancy and if a person duly qualified is
selected in the manner prescribed and then duly
appointed, the Management has no choice or option
to appoint him for a limited period such as one
academic year or shorter than that.
Thus, although Sub-rule (3) of rule (9) does
not specifically speak of requirement of publication of
vacancies by an advertisement and inviting
applications from candidates eligible and desirous of
seeking appointment, as Sub-rule (8) speaks for the
purpose of filling up the vacancies reserved under
Sub-rule (7), requirement of such an advertisement
must be read within the provisions for the reasons
discussed hereinabove and which may be
summarized, at the cost of repetition as follows.
(i) Statute is enacted for the purpose of
regulating the recruitment in private schools in the
State.
(ii) Interpretation that Sub-rule 3 of rule 9
does not prescribe publication of advertisement, when
read in the light of Sub-rule 8, would be
discriminatory and capable of promoting
arbitrariness and nepotism.
(iii) Such an interpretation would be against
the spirit of Articles 14 and 16 of the Constitution,
and therefore, interpretation which would make rule
9 unconstitutional will have to be rejected.
(iv) When Sub-section 2 of Section 5 compels
the Management to appoint eligible, duly selected
candidate only on probation, the backdoor entry of a
person who alone knows about existence of vacancy
cannot be accepted as palatable interpretation either
of Rule 9 or Section 5 read with Rule 9."
16 He has, therefore, contended that a candidate, in order to
claim the benefits of deemed permanency, must be duly selected, must be
*24* 916.wp.584.97.sxw
appointed against the permanent and vacant post and the appointment
must necessarily be on probation.
17 In paragraph 12 of the judgment of this Court in
Chandramani Devraj Tiwari (supra), it has been concluded that the claim
for benefits of deemed permanency under Section 5(2) of the MEPS Act,
1977 necessarily requires a proper selection and proper appointment
which means that the candidate complies with the requisite qualifications
and eligibility criteria.
18 In paragraph 3 of the Rayat Shikshan Sanstha judgment
(supra), after noting that there was no evidence on record that the
appointment of the employee therein was made after following the due
procedure of law laid down in the Act and the Rules, this Court concluded
that the employee could not be granted any benefit and hence, could not
be continued in service. Similar is the view expressed by this Court in
paragraphs 17 and 24 of the Jaimala Bhaurao Ramteke judgment (supra).
19 The learned Division Bench of this Court in the matter of
Tanaji Madhukar Barbade (supra) concluded in paragraph 17 that only an
eligible candidate would have the right to apply for the teaching or non-
*25* 916.wp.584.97.sxw
teaching posts in a private school. In the absence of requisite
qualifications, no right would be created. In the absence of any vacancy,
there cannot be deemed confirmation in service.
20 The Honourable Apex Court has concluded in the following
four judgments that when an employee puts in a short spell of service and
which is followed by a long duration of unemployment, it would be
inappropriate to grant reinstatement with continuity and with or without
back-wages:-
(a) Assistant Engineer, Rajasthan State Agriculture Marketing
Board, Sub-Division, Kota Vs. Mohanlal, [2013 LLR 1009];
(b) Assistant Engineer, Rajasthan Development Corporation and
another Vs. Gitam Singh, [(2013) 5 SCC 136];
(c) BSNL Vs. Man Singh, (2012) 1 SCC 558; and
(d) Jagbir Singh Vs. Haryana State Agriculture Marketing Board,
[(2009) 15 SCC 327].
21 Shri Mantri has strenuously canvassed that Mrs.Bhoite, who is
presently the Headmistress over the past two decades, is identically placed
as like the Petitioner having been appointed in 1987, which is one year
after the Petitioner was appointed and also did not have the requisite
*26* 916.wp.584.97.sxw
qualifications. She completed her D.Ed. in 1991 when the Petitioner was
terminated. She was continued in employment only because her brother
was the President of the Institution. Shri Mantri has, therefore, submitted
that the Petitioner deserves reinstatement with continuity and full back-
wages.
22 In the light of the above, it is apparent that the Petitioner has
lost an opportunity of completing her D.Ed. course only on account of
rejection of her application by the Deputy Director of Education and which
action has been held to be illegal. The said damage cannot be undone
today, though by imposing costs on the Department of Education, some
solace could be offered to her.
23 Similarly, the Respondent/ Management could have
continued the Petitioner as an untrained teacher in the primary section
until she completed her D.Ed. by correspondence, as after acquiring the
said qualification, she could have been granted regularization and her
seniority could have been maintained from the date of her appointment. It
is given to understand that the scheme of postal D.Ed. has now been
extended till March, 2019.
24 As such, granting reinstatement with continuity of service and
*27* 916.wp.584.97.sxw
full back-wages to the Petitioner who has been out of employment for the
last 25 years, appears to be impracticable. I, therefore, deem it proper to
grant compensation to the Petitioner under Section 11(2)(e) of the MEPS
Act, 1977.
25 This Writ Petition is, therefore, partly allowed. Though the
impugned judgment of the School Tribunal is sustained considering the
fact situation as above, I am directing as under in addition thereto:-
(a) The Department of Education shall pay compensation of
Rs.50,000/- (Rupees Fifty Thousand) to the Petitioner within
a period of TWELVE WEEKS from today.
(b) The Respondent/ Management shall pay the Petitioner an
amount equal to the last six months' salary with pay and
allowances as are applicable to an Assistant Teacher primary
today, within a period of TWELE WEEKS.
26 Rule is made partly absolute in the above terms.
27 The record and proceedings from the School Tribunal, Nashik
shall be returned back forthwith.
kps (RAVINDRA V. GHUGE, J.)
