Bombay High Court
Trimurti Balak Mandir Shikshan ... vs Vithabai Bhikan Desale @ Vithabai ... on 22 March, 2016
Bench: R.V. Ghuge
WP 9329/15
- 1 -
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.9329/2015
1 Trimurti Balak Mandir Shikshan Sanstha,
Shastri Nagar, Aurangabad.
(Through its Secretary)
Smt.Pushpa Arun Dixit,
ig R/o Plot No. 23, Shastri Nagar,
Jawahar Colony, Aurangabad.
2 The Head Master,
Trimurti Balak Mandir
(Primary School),
Plot No.P-107, Bajaj Nagar,
Waluj, Aurangabad.
...Petitioners...
Versus
1 Smt. Vithabai Bhikan Desale,
@ Vithabai w/o Rajendra Chavan,
Age - 47 years, Occu-Service,
R/o H. No. 175/176, Mhada Colony,
N-2, Near "Swami Samarth Mandir,
Opp. Dhoot Hospital, Aurangabad,
Dist. Aurangabad.
2 The Education Officer (Primary),
Zilla Parishad, Aurangabad.
3 The Deputy Director of Education
(Primary Section),
Osmanpura, Near Deogiri College,
Aurangabad, Dist. Aurangabad.
...Respondents...
.....
::: Uploaded on - 30/03/2016 ::: Downloaded on - 31/07/2016 09:54:28 :::
WP 9329/15
- 2 -
Shri R.J. Godbole, Advocate for petitioners.
Shri Sanket S. Kulkarni, Advocate h/f Shri G.R. Ingole
Patil, Advocate for respondent no.1.
Shri D.K. Rajput, Advocate for respondent no.2.
Shri D.R. Korde, AGP for respondent no.3.
.....
CORAM: RAVINDRA V. GHUGE, J.
DATE: 22.03.2016
ORAL JUDGMENT :
1]
Rule. Rule made returnable forthwith and heard
finally by the consent of the parties.
2] The petitioner - management has challenged the
impugned judgment dated 1.1.2015 delivered by the School
Tribunal, Aurangabad, by which the Appeal No.3/2009 filed
by respondent no.1 - employee has been allowed and she
has been granted reinstatement with consequential
benefits from the date of her oral termination, which is
23.12.2008.
3] After considering the strenuous submissions of
the learned Advocates for the respective sides, I find
that this case is a classic example of an unscrupulous
employer exploiting a teacher employee, who has been
WP 9329/15
- 3 -
working in the said school for more than five years.
4] The contention of Shri Godbole, learned Advocate
for the petitioner - management, can be summarized as
under:-
a] Respondent no.1 - employee was allowed to
work only to gain experience as a teacher.
b] She was inducted as an extra teacher only
for the purpose of enabling her to gain
experience.
c] There was no advertisement and no
applications were called for.
d] She was not allowed to sign on the Muster
Roll as she was an extra teacher.
e] Management is unaware whether her monthly
wages are paid.
f] Since she was an extra teacher, her
proposal for approval was not forwarded to the
Education Department.
g] Though the letter of appointment dated
16.6.2003 was given to the employee, the said
letter is insignificant as the said appointment
WP 9329/15
- 4 -
order was issued only for enabling her to gather
experience.
h] She was never treated as a beneficiary of
the appointment order dated 16.6.2003.
i] The management expected this employee to
gather experience and join some other school.
j] The employee desires to harass the
management and, therefore, she filed her appeal.
k] Since she was an extra teacher, she was
orally terminated from service.
l] Though the appointment order dated
16.6.2003 was issued in her name, it was only
for an honorarium of Rs.3,000/-.
m] Though the appointment order dated
16.6.2003 is not disputed, the same deserves to
be discarded as according to the management, the
employee had never worked.
n] There was no vacancy for accommodating the
employee in the said school.
o] Though the qualifications of the employee
are not disupted, she had no right to
employment.
WP 9329/15
- 5 -
p] Since she was an extra teacher, the
management is not required to follow any
procedure of termination laid down under the
Maharashtra Employees of Private Schools
(Conditions of Service) Rules, 1981.
q] Reliance is placed upon the judgment
delivered by this Court in the matter of Deelip
Uttamrao Bhosale v. Secretary, Mahatma Phule
Shikshan Prasarak Mandal Kingaon & others dated
10.3.2016 (Writ Petition No.2531/2011).
r] Reliance is also placed upon the judgment
of this Court in the matter of Anna Manikrao
Pethe v. Presiding Officer, School Tribunal,
Amravati (1997 (3) Mh.L.J., 697).
s] Reliance is also placed on the judgment of
this Court in the matter of President, Late Shri
Ramchandra Patil Shikshan Sanstha, Kunikonur &
others v. Haiderali Mahmadhanif Inamdar &
another (2008 (4) Mh.L.J., 159).
t] Reliance is also placed on the judgment in
Chandramani Devraj Tiwari v. The Secretary,
SMR.R.B. Tiwari Sanskrutik Kendra & others (2007
WP 9329/15
- 6 -
(6) Mh.L.J., 667).
5] Shri S.S. Kulkarni alongwith Shri G.R. Ingole
Patil, learned Advocates for the employee, submit as
under:-
a] The employee possessed the requisite
qualification of S.S.C., D.Ed. and belongs to
the Other Backward Class category.
b] She was appointed as a teacher on 16.6.2003
by the management indicating to her that the
procedure of appointment was followed.
c] She believed in the appointment order dated
16.6.2003 and reported for duties.
d] She has been continuously working from the
date of her appointment till her oral
termination dated 23.12.2008, which is after a
period of five and half years.
e] The employee had filed an application
seeking appointment and the management had
appointed her by the order dated 16.6.2003 after
properly interviewing.
f] The stand taken by the employer that she
WP 9329/15
- 7 -
was appointed as an extra teacher is false and
vexatious.
g] There were examinations for Grade IV to
Grade VII and the employee was appointed as an
Examiner for the examinations held in December,
2006, January, 2007 and February, 2007. Had she
not been a regular employee, she would not have
been given the work of an Examiner by the
petitioner - establishment.
h] The appointment order dated 16.6.2003 is
not disputed or denied.
i] Document at Exhibit 4/7 indicates that the
employee had worked as an Examiner in Raja
Shivaji Vidyalaya, Bajaj Nagar, Aurangabad, for
the scholarship examination.
j] The employee was relieved from daily duties
to undergo training as in-service candidate in
the Sarva Shikshan Mohim by letter dated
21.1.2007, which was issued by the Education
Extension Officer for the period of training
from 16.12.2006 to 17.12.2006.
k] She had also completed her environmental
WP 9329/15
- 8 -
training under the aegis of the employer.
l] The fact that the employee possessed
requisite qualification was also not denied by
the management.
m] She was a trained teacher as per Rule 2(k)
of the MEPS Rules, 1981.
n] The oral termination of the employee in
itself indicates the illegality committed by the
management.
o] The defence u/s 5 of the Act was not set up
by the management.
p] After having worked for more than five
years and after the employee was orally
terminated, that the management has taken a
stand for the first time before the Tribunal
that the employee was appointed as an extra
teacher for gaining experience.
q] The decision in the case of Anna Pethe,
cited by the employer, was considered by the
learned Full Bench of this Court in the case of
St.Ulai High School v. Devendraprasad Jagannath
Singh (2007 (1) Mh.L.J., 597).
WP 9329/15
- 9 -
r] Reliance is placed on the judgment of this
Court in the matter of Sadhana Janardhan Jadhav
v. Pratibha Patil Mahila Mahamandal & others
(2013 (1) Bom.C.R., 269) wherein the Division
Bench has concluded that a defence u/s 5 of the
MEPS Act ought to be taken by the employer and
the issue as to whether the appointment of an
employee was after following the legal procedure
should not be mechanically framed in every
matter.
s] Reliance is placed on the judgment of this
Court dated 15.12.2015 in the matter of Mrudula
Martand Palashikar v. Jijamata Primary School &
others (Writ Petition No.1026/2015) to contend
that the relaxation of upper age limit is
permissible under Rule 9(4)(a) of the 1981
Rules.
t] Reliance is placed upon the judgment of the
Full Bench of this Court in the case of
Ramkrishna Chauhan v. Seth D.M. High School &
others (2013 (2) Mh.L.J., 713) to contend that
the appointment order issued by an employer can
WP 9329/15
- 10 -
neither be disputed by the employee nor the
employer.
6] I have considered the submissions of the learned
Advocates, as have been recorded hereinabove, and have
gone through the judgment impugned and the record
available.
7]
The appointment order dated 16.6.2003 has not
been disputed. A glance at the appointment order
indicates that it is issued under Rule 9(5) under
Schedule D under the 1981 Rules.
8] Clause (1) of the appointment order indicates
that the management was pleased in appointing the
respondent no.1 - employee as a teacher from 16.6.2003.
She was held entitled for all allowances as may be
granted by the Government.
9] Clause (2) of the order states that she was
likely to be terminated at any time.
WP 9329/15
- 11 -
10] Clause (3) of the order indicates that the
provisions of the Maharashtra Employees of the Private
Schools (Conditions of Service) Act, 1977 r/w MEPS Rules,
1981, were applicable to the services of the employee.
There is no contention by the petitioner - management
that the appointment order was illegal or was issued
unauthorizedly by the signatory to the order.
11]
Rule 9 under the 1981 Rules pertains to the
appointment of the teaching staff. Same reads as under:-
"9. Appointment of Staff
(1) The teaching staff of the school shall be
adequate having regard to the number of classes
in the school and the curriculum including
alternative courses provided and the optional
subjects taught therein.
(2) Appointments of teaching staff (other than
the Head and Assistant Head) and those of non-
teaching staff in a school shall be made by the
School Committee:
Provided that, appointments in leave
vacancies of a short duration not exceeding
three months, may be made by the Head, if so
authorised by the School Committee.
(3) Unless otherwise provided in these rules
WP 9329/15
- 12 -
for every appointment to be made in a school,
for a teaching or a non teaching post, the
candidates eligible for appointment and
desirous of applying for such post shall make
an application in writing giving full details
regarding name, address, date of birth,
educational and professional qualifications,
experience, etc., attaching true copies of the
original certificates. It shall not be
necessary for candidates other than those
belonging to the various sections of backward
communities for whom posts are reserved under
sub-rule (7) to state their castes in their
applications.
(4) The age limit for appointment to any post
in a school be as follows, namely :
(a) for an appointment to be made to any
post in a primary school, a candidate shall
not be less than 18 years of age and more
than 28 years of age, and in the case of
candidate belonging to Backward Classes he
shall not be more than 33 years of age.
Provided that, upper age-limit may be
relaxed in case of women, ex-servicemen and
persons having previous experience with the
previous permission of the Deputy Director.
(b) for an appointment to be made to any
post in any school other than primary
school, a candidate shall not be below the
age of 18 years.
WP 9329/15
- 13 -
(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 received the appointment order shall be
obtained from the candidate appointed.
(6) Every employee shall within three months of
his appointment, undergo medical examination by
a registered medical practitioner named, if
any, by the Management or otherwise by any
registered medical practitioner. The expenses
of medical examination shall be borne by the
Management. The appointment shall be
conditional pending certificate that he is free
from any communicate disease and that he is
physically fit to be so appointed.
(7) The Management shall reserve 52 per cent.
Of the total number of posts of the teaching
and non-teaching staff for the persons
belonging to the Scheduled Castes, Scheduled
Tribes, De-notified Tribes (Vimukta Jatis),
Nomadic Tribes, Special Backward Category and
other Backward Classes as follows, namely :-
(a) Scheduled Castes 13 per cent;
(b) Scheduled Tribes 7 per cent;
(c) De-notified Tribes (A) 3 per cent;
(d) Nomadic Tribes (B) 2.5 per cent;
(e) Nomadic Tribes (C) 3 per cent;
(f) Nomadic Tribes (D) 2 per cent;
(g) Special Backward Category 2 per cent;
(h) Other Backward Classes 19 per cent;
52 per cent.
WP 9329/15
- 14 -
(8) For the purpose of filling up the vacancies
reserved under sub-rule (7) the Management shall
advertise the vacancies in at least one
newspaper having wide circulation in the region
and also notify the vacancies to the Employment
Exchange of the District and to the District
Social Welfare Officer (and to the associations
or organizations of persons belonging to
backward classes, by whatever names such
associations or organisations are called and
which are recognized by Government for the
purposes of this sub-rule) requisitioning the
names of qualified personnel, if any, registered
with them. If it is not possible to fill in the
reserved post from amongst candidates, if any,
who have applied in response to the
advertisement or whose names are recommended by
the Employment Exchange or the District Social
Welfare Officer (or such associations or
organizations as aforesaid) within a period of
one month the Management may proceed to fill up
the reserved post in accordance with the
provisions of sub-rule (9).
(9) (a) In case it is not possible to fill in
the teaching post for which a vacancy is
reserved for a person belonging to a particular
category of Backward Classes, the post may be
filled in by selecting a candidate from the
other remaining categories in the order
specified in sub-rule (7) and if no person from
WP 9329/15
- 15 -
any of the categories is available, the post may
be filled in temporarily on an year to year
basis by a candidate not belonging to the
Backward Classes.
(b) In the case of a non-teaching post, if
a person the particular category of Backward
Classes is not available, the Management shall
make efforts with regular intervals to fill up
the post within the period of five years and the
post shall not be filled up during that period
by appointing any other person who does not
belong to the respective category of Backward
Class.
(10) (a) The Management shall reserve 24 percent
of the total number of posts (or vacancies) of
Heads and Assistant Heads for the members of
Scheduled Castes, Scheduled Castes converts to
Buddhism, Scheduled Tribes, De notified Tribes
as follows, namely :
(i) Scheduled Castes and Scheduled Castes
converts to Buddhism - 13 per cent.
(ii) Scheduled Tribes including those living
outside the specified areas - 7 per cent.
(iii)Denotified Tribes and Nomadic Tribes -
4 per cent.
(b) In case it is not possible to fill in
the post of a Head or Assistant Head for which
a vacancy is reserved for a person belonging to
the Castes and Tribes specified in clause (a),
the post may be filled in by promoting a
candidate from the other remaining categories
WP 9329/15
- 16 -
in the order specified in clause (a), so
however that the percentage of filling up such
vacancies does not exceed the limit laid down
for each category. If candidates belonging to
any of these categories are not available, then
the vacancy or vacancies -
(i) of the Head may be filled in by
promoting any other teacher on the basis of
seniority-cum-merit after obtaining previous
approval of the Education Officer;
(ii) of the Assistant Head shall be kept
unfilled for a period of three years unless
such vacancy or vacancies could be filled in
by promotion of any teachers belonging to
such Castes or Tribes becoming available
during that period."
12] Rule 9(5) mandates that a letter of appointment
in form Schedule D shall be issued to a candidate
appointed to the post. As such, the appointment order
has clearly made the employee believe that an appointment
was made under Rule 9(5) and in form Schedule D. There
is no dispute that the said appointment order was neither
withdrawn nor had the management taken a stand that it
was issued by an unauthorized person or an incompetent
authority.
WP 9329/15
- 17 -
13] The fact, however, cannot be ignored that the
management did not tender a copy of this appointment
order to the Education Department and did not move a
proposal for the approval of the employee's services. No
explanation on this count is forthcoming except that,
after her oral termination and when the employee had put
in five and half years in service, the management states
before the Tribunal for the first time that the employee
was never appointed by virtue of the appointment order
and was a teacher appointed only for gaining experience.
14] In the course of the hearing of this matter, it
was put to the learned Advocate for the petitioners as to
whether there is any rule or provision, which enables the
management to engage an employee by issuing an
appointment order only for the purposes of gaining
experience, the learned Advocate was unable to offer an
explanation except that the management found it fit to
issue the appointment order dated 16.6.2003.
13] The fallacious stand taken by the management has
WP 9329/15
- 18 -
been further exposed by the record available and which
was produced before the Tribunal. The management had
contended that the employee was never in service, that
she was an extra employee and was, therefore, not in the
employment of the petitioners. This stand has been
exposed by the record produced before the Tribunal, which
indicated that the said teacher was deputed for
undergoing training under two different schemes as an in-
service candidate and she had also functioned /
discharged duties as an Examiner in the scholarship
examinations conducted by the petitioner - school.
16] If the concerned teacher was an extra teacher,
as contended by the petitioners, it is beyond
comprehension that she was permitted to officially
function as an Examiner in the scholarship examinations.
These are such instances, which expose the falsity in the
stand taken by the management.
17] It also cannot be ignored that the respondent -
employee was permitted to work for five and half years.
A consequential inference from the facts available is
WP 9329/15
- 19 -
that the employee was appointed by virtue of the
appointment order dated 16.6.2003. An oral termination
in itself would indicate that the management on the one
hand, desired to dispense with the services of the
teacher and on the other hand did not have the courage to
take a stand on her termination by issuing an order of
termination. It is unconscionable that any employer
could be permitted to illegally terminate an employee
under oral orders and then put forth a host of factors
only when the employee challenged the termination before
the School Tribunal.
18] The petitioners have placed reliance on an
unreported judgment of this Court in the matter of Deelip
Uttamrao Bhosale (supra). In the said matter, the
employee had suffered an adverse judgment before the
School Tribunal and had claimed to be a Sports Teacher
for a period of only two years. There were no factors
before the Tribunal to indicate that he had functioned as
an Examiner and was appointed in the manner in which the
respondent no.1 - employee in this case has been
appointed. The said judgment would, therefore, not be
WP 9329/15
- 20 -
applicable to this case.
19] Reliance has been placed upon the judgment of
this Court in the matter of Anna Manikrao Pethe (supra).
In the said case, the employee was appointed purely on
temporary basis for the period 1.7.1986 to 30.4.1987.
After the conclusion of the academic year, the employee
was discontinued by efflux of time. Thereafter, again an
appointment order on purely temporary basis was issued
for periods 1.7.1987 to 30.4.1988 and from 1.7.1988 to
30.4.1989. The employee was not a trained teacher. The
appointment order itself indicated that his engagement
was for a temporary period.
20] The facts of the case in hand indicate that an
appointment order was issued under Rule 9(5) and in the
form prescribed under Schedule D of the 1981 Rules. The
facts indicate that for five and half years, there was no
termination of the respondent - employee after the
completion of any academic year. The facts in this case
also indicate that the respondent no.1 - employee had
functioned / performed duties as an Examiner in the
WP 9329/15
- 21 -
scholarship examinations and was also deputed for
training as an in-service candidate. I, therefore, do
not find that facts in the case of Anna Manikrao Pethe
(supra) are similar to the facts in this case.
21] The petitioners have also relied upon the
judgments in the matter of Haidarali Mahmadhanif Inamdar
(supra) and Chandramani Devraj Tiwari (supra). In the
case of Chandramani Devraj Tiwari, the learned Division
Bench of this Court came to a conclusion that an
illegality was committed by mutual consent by the
employee and by the management. It was concluded that
such an illegality committed by mutual consent in order
to project the employee as a regular employee was not
being appreciated by this Court and it was, therefore,
concluded that in such situations, the employee cannot
take advantage of the documents available.
22] Respondent no.1 - employee has relied upon the
judgment of this Court in the matter of Sadhana Janardhan
Jadhav (supra). This Court has considered the judgments
delivered earlier in the cases of Anna Manikrao Pethe
WP 9329/15
- 22 -
(supra) and St.Ulai High School (supra) alongwith several
other judgments. The respondent no.1 - employee has
relied upon the contents of paragraph nos.18, 19 and 22,
which read as under:-
"18. We thus find as revealed in the facts of
this case that, the approach of the Tribunals in
framing the preliminary issue as to whether
appointment was as per Section 5 of the MEPS Act
and the Rules and dismissing the same only on
that ground by relying on Para 15 of the
judgment in Anna Pethe's case, is unwarranted.
The observations in Para 15 of the Judgment in
Anna Pethe's case, therefore, will have to be
read in the context of law laid down by the Apex
Court right from the year 1975, which went
unnoticed in the case of Anna Pethe. We, quote
the following paragraphs from the judgment of
the Hon'ble Apex Court in the case of National
Council for Cement Vs. State of Haryana - (1996)
3 SCC 206, as under :
"12. We, however, cannot shut our eyes to
the appalling situation created by :::
LPA No.149/2012 such preliminary issues
which take long years to settle as the
decision of the Tribunal on the preliminary
issue is immediately challenged in one or
the other forum including the High Court and
WP 9329/15
- 23 -
proceedings in the reference are stayed
which continue to lie dormant till, the
matter relating to the preliminary issue is
finally disposed of.
13. This Court in Cooper Engineering Ltd.
v. P.P.Mundhe - (1975)2 SCC 661) in order to
obviate undue delay in the adjudication of
the real dispute, observed that the
Industrial Tribunals should decide the
preliminary issues as also the main issues
on merits all together so that there may not
be any further litigation at the
interlocutory stage. It was further observed
that there was no justification for a party
to the proceedings to stall the final
adjudication of the dispute referred to the
Tribunal by questioning the decision of the
Tribunal on the preliminary issue before the
High Court.
14. Again in S.K.Verma v. Mahesh Chandra -
(1983)4 SCC 214) this Court strongly
disapproved the practice of raising
frivolous preliminary objections at the
instance of the employer to delay and :::
LPA No.149/2012 defeat the purpose of
adjudication on merits.
In D.P.Maheshwari v. Delhi Administration
and Ors. - (1983) 4 SCC 293 the Supreme
Court observed thus in the following
WP 9329/15
- 24 -
extracted portion of para 1, -
"1...There was a time when it was thought
prudent and wise policy to decide
preliminary issues first. But the time
appears to have arrived for a reversal of
that policy. We think it is better that
tribunals, particularly those entrusted
with the task of adjudicating labour
disputes where delay may lead to misery
and jeopardise industrial peace, should
decide all issues in dispute at the same
time without trying some of them as
preliminary issues..."
"....Tribunals and courts who are
requested to decide preliminary questions
must therefore ask themselves whether
such threshold part - adjudication is
09/06/2013 19:28:01 ::: 15 LPA
No.149/2012 whether it will not lead to
other woeful consequences. After all
tribunals like industrial tribunals are
constituted to decide expeditiously
special kinds of disputes and their
jurisdiction to so decide is not to be
stifled by all manner of preliminary
objections and journeyings up and down."
19. We do not find any reason why the same
WP 9329/15
- 25 -
tenet of law enunciated by the Supreme Court
in case of labour disputes majority of which
are `service matters' should also not apply in
relation to `service-matters' of all employees
of private schools who institute appeals
before the specially created `School Tribunal'
under MEPS Act, 1977. We, therefore, hold in
the light of the law laid down by the Apex
Court that the preliminary issue as to whether
the appointment of the appellant is made in
accordance with Section 5 of the MEPS Act and
the Rules there under, should not be framed
mechanically in the first place and should be
framed only if it arises and is properly
substantiated in the pleadings of the parties
to the appeal and further at that the School
Tribunal should decide all the issues at the
same time without trying any or some of them
as preliminary issues.
22. The Tribunal has also recorded a finding
that refusal of approval by the Education
Officer did not render the appointment of the
appellant invalid, which, in our opinion, is
- 09/06/2013 19:28:01 ::: 19 LPA No.149/2012
Bench decision in the case of St.Ulai High
School and Anr. (cited supra). We, therefore,
reject the submissions advanced by learned
Counsel for Respondent no.4 that the appellant
WP 9329/15
- 26 -
did not discharge the initial burden of proof
and we further reject the submission to set
aside the adverse findings recorded by the
Tribunal and the learned Single Judge against
the interest of Respondent no.4."
23] It is thus apparent that the learned Division
Bench of this Court while considering the case of Anna
Pethe (supra) has relied upon an earlier judgment
delivered by the Hon'ble Supreme Court in the case of
National Council for Cement Vs. State of Haryana - (1996)
3 SCC 206) wherein the Apex Court had observed that the
time had come for the Courts to refrain from shutting its
eyes to the appalling situations created by preliminary
issues being raised before the Tribunals with regard to
the appointments of the employees. This Court,
therefore, concluded that the framing of preliminary
issues under the MEPS Act proceedings in every case is
unwarranted and dismissed the appeals by relying on
paragraph no.15 of the judgment in Anna Pethe's case
(supra). This Court, therefore, concluded that the
observations of this Court in the case of Anna Pethe were
to be read in the context of the law laid down by the
Apex Court.
WP 9329/15
- 27 -
24] The petitioners have now taken an another stand
that the respondent no.1 - employee was over-aged. This
was not the stand of the petitioners when the order of
appointment was issued. Similarly, this Court in the
matter of Mrudula Martand Palshikar (supra) has
considered Section 9(4)(a) that the employer in the
matters of employment of lady teachers can make an
application to the Education Officer for relaxation of
age and the same is permissible in the light of the law
applicable. In this backdrop, the petitioners are at
liberty to make such an application to the Education
Officer for seeking relaxation in the age, if so advised.
25] Insofar as the act of the petitioners in not
submitting the proposal to the Education Department for
approval, would no longer be an obstacle in the path of
otherwise eligible candidates, who are working as
Assistant Teachers or trained teachers, in the light of
the ratio laid down by the learned Full Bench of this
Court in the case of St.Ulai High School (supra). It is
held by the learned Full Bench that the absence of
WP 9329/15
- 28 -
approval or refusal to grant approval can neither be a
ground for terminating the service of an employee nor can
it be a ground for refusing to continue an employee, who
is otherwise eligible.
26] In the instant case, from the pleadings of the
petitioners before the Tribunal, it is apparent that the
petitioner - management has not taken a stand that the
employee was not qualified and could not have been
regularized on account of lack of requisite
qualifications. Per contra, it has come on record and
which has been appreciated by the School Tribunal that
the respondent no.1 - employee had the requisite
qualification and there was no obstruction for her being
continued in employment.
27] In the judgment of the learned Full Bench in the
case of Ramkrishna Chauhan (supra), it has been concluded
that if the parties accept the terms and conditions
stipulated in the appointment order, it would not be open
for the employee to challenge the appointment order as
being contrary to the rules or on the ground that the
WP 9329/15
- 29 -
terms and conditions stipulated therein were not legally
valid. This conclusion of the learned Full Bench cannot,
in isolation, be made applicable to the employee alone.
The law would have to be made applicable in given
circumstances to both the litigating sides on the
principle of equality. If the employee cannot question
the terms and conditions of appointment order once it has
been accepted, the employer also needs to be precluded
from questioning its own appointment order issued to the
employee on the basis of which the employee, as in this
given case, has worked for five and half years.
28] In the light of the judgment of the learned Full
Bench, the petitioner - management is precluded from
questioning its own appointment order issued to the
respondent - employee, as if this is permitted, it would
surely result in giving a latitude to the management to
perpetuate the illegality and play a fraud on an employee
by first issuing an appointment order in accordance with
the rules and after five years or more take a stand that
the said appointment order was never implemented.
WP 9329/15
- 30 -
29] In the light of the above, I do not find that
the impugned judgment could be termed as being perverse
or erroneous. Merely because a different view could
possibly be taken, would not render the impugned judgment
erroneous.
30] In fact, from the facts of this case, I have no
hesitation in concluding that this management has
attempted to defeat the legal right of the respondent -
employee by orally terminating her services after having
put in five and half years and by taking an unusual and
unconscionable stand that she was appointed only to
enable her to gather experience and was an extra
employee, turning a blind eye to the fact that she was
also performing her duties as an Examiner in the
scholarship examinations.
31] This petition is, therefore, dismissed with
costs quantified at Rs.25,000/- to be paid to the
respondent no.1 - employee within a period of eight weeks
from today. All consequential benefits that the
respondent no.1 - employee is entitled to pursuant to the
WP 9329/15
- 31 -
impugned judgment of the School Tribunal shall be made
available to her. Rule is discharged.
32] At this juncture, learned Advocate for the
respondent no.1 - employee submits that this Court had
directed the management to deposit back wages as a
condition for staying the impugned judgment. An amount
of Rs.2,43,800/- has been deposited in this Court on
12.10.2015. Advocate Shri Godbole on behalf of the
petitioner - management submits that since the management
may take a chance before the Hon'ble Supreme Court, the
respondent no.1 - employee should not be allowed to
withdraw the said amount.
33] In the light of the same, the respondent no.1 -
employee is permitted to withdraw the said amount after a
period of four weeks from the date of this judgment, but
subject to any order that may be passed by the Hon'ble
Apex Court.
(RAVINDRA V. GHUGE, J.)
ndk/c2231616.doc
