Surendra Namdeorao Deshmukh vs President, Anglow Vernacular ...
2016 Latest Caselaw 5907 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                            
                    NAGPUR BENCH, NAGPUR




                                                    
                        Writ Petition No.2560 of 2008


      Surendra Namdeorao Deshmukh,




                                                   
      Aged about 45 years,
      R/o Samartha Primary School,
      Darwha, Tq. Darwha,
      Dist. Yavatmal.                                   ... Petitioner




                                         
           Versus
                             
      1. President, Anglow Vernacular
         Education Society,
         having Reg. No.F-88, Darwha,
                            
         Tq. Darwha, Dist. Yavatmal.

      2. Headmistress,
         Samarth Primary School,
         Darwha, Tq. Darwha,
      


         Dist. Yavatmal.
   



      3. The Education Officer (Pri),
         Zilla Parishad, Yavatmal.

      *4. Secretary Anglow Vernacular 





          Education Society, Darwha.

           [* Respondent No.4 is deleted
           as per Court's Order dated 18-2-2009]

      5. Mohan Deorao Bidwaik,





         Primary Teacher, Samarth Primary
         School, Darwha, Tq. Darwha,
         Dist. Yavatmal.

      6. Deputy Director of Education,
         Amravati Division, Amravati.                   ... Respondents




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      Shri Prashant Thakre, Advocate for Petitioner.
      Shri Rahul Tajne, Advocate for Respondent No.2.
      Shri D.G. Patil, Advocate for Respondent No.3.
      Ms Geeta Tiwari, AGP for Respondent No.6.




                                                          
                   Coram : R.K. Deshpande, J.

Dated : 7th October, 2016

Oral Judgment :

1.

The petitioner, working as Assistant Teacher from

27-8-1997, was terminated by an order dated 28-7-2003 on the

grounds that his appointment was against the additional sections

started on no-grant basis, which were closed, that the appointment

was made on temporary basis without following the provisions of

Section 5 of the Maharashtra Employees of Private Schools

(Conditions of Service) Regulation Act, 1977 ("the MEPS Act"), that

there is no post for continuing him on temporary basis, and that the

Education Officer has refused to grant approval to his appointment for

the reason that there was backlog of ST and VJ-NT candidates. The

School Tribunal has dismissed Appeal No.59 of 2003 filed under

Section 9 of the MEPS Act challenging the termination of the

petitioner. Hence, this petition by the employee.

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2. The School Tribunal records the findings that the

appointment of the petitioner was not in a clear and permanent

vacancy, as contemplated by Section 5 of the MEPS Act, that the

appointment was on temporary basis on the additional sections

created on no-grant basis, that there existed a backlog of ST and

VJ-NT candidates, that the petitioner was over-aged, that the

maximum age for appointment from open category was of 33 years,

that at the time of initial appointment on 27-8-1997 the petitioner was

aged 38 years, and that there was no relaxation by the competent

authority.

3. The facts of the case in detail are as under :

In response to the advertisement issued in the newspaper,

the petitioner applied for the post of Assistant Teacher created on

no-grant basis. He was appointed by an order dated 27-8-1997 for the

period from 28-8-1997 to 27-8-1999 on temporary basis with an

intimation that his services were liable to be terminated without any

notice. Thereafter, on 28-8-1999, the petitioner was again appointed

on temporary basis upon the same terms and conditions. The School

Committee passed a resolution dated 22-5-2000 recording that the

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appointment of the petitioner on the additional sections on no-grant

basis was found to be satisfactory and, therefore, a proposal should be

submitted to the Education Officer for confirming the petitioner in

service with effect from 28-8-1999. Again on 15-1-2001, a resolution

was passed to appoint the petitioner during

the Academic Session 2000-2001 in the post created on grant-in-aid

basis for the period of one year and to submit the proposal for

approval to the appointment of the petitioner to the Education Officer.

It was made clear to the petitioner, which is reflected in the

undertaking given by the Management on 1-2-2001, that in order to

avoid inconvenience being caused to the students, the petitioner is

appointed in the post on grant-in-aid basis, which shall be filled in as

per the roster. Again, the Management passed a resolution

dated 8-10-2001 to submit the proposal for grant of approval to the

appointment of the petitioner. Ultimately, on 28-7-2003, the services

of the petitioner were terminated by an order in writing.

4. It seems from the undisputed factual position that four

additional sections were created on no-grant basis, initially in the

year 1997 and the initial appointment of the petitioner on 27-8-1997

was as Assistant Teacher on such additional sections. Because of the

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reduction in workload, the additional sections were closed down

during the year 2000-2001 and simultaneously, a vacancy in one of

the grant-in-aid posts occurred in which the Management made efforts

to accommodate the petitioner as Assistant Teacher on regular basis.

This proposal has, however, been rejected by the Education Officer

stating that there is a backlog of ST and VJ-NT candidates and the

petitioner, who does not belong to such category, cannot be granted

the approval. The roster was produced before the School Tribunal

indicating the reservation of the post for such category. There is

nothing on record to show that either the initial appointment of the

petitioner or subsequent appointment were as a candidate belonging

to OBC category. It is also not the case of any of the parties that the

appointment of the petitioner was against the post reserved for OBC

category on grant-in-aid basis. The additional sections were created

on no-grant basis for the first time in the year 1997, when the

petitioner was appointed, and then within a short period of three

years, the additional sections were closed down. In view of this, no

fault can be found with the view taken by the Tribunal that the

appointment of the petitioner in the post on no-grant basis was purely

on temporary basis and not in a clear and permanent vacancy.

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5. Though the Management tried to accommodate the

petitioner in the post created subsequently on grant-in-aid basis,

undisputedly, it was reserved for ST and VJ-NT candidates. While

appointing the petitioner on this post, the procedure for making

regular appointment was not followed either by issuing an

advertisement and providing an opportunity to all the qualified

candidates competing for the post. The appointment was obviously

not in accordance with Section 5 of the MEPS Act and, therefore, no

fault can be found with the view taken by the Tribunal that the

appointment of the petitioner on the post on grant-in-aid basis cannot

be termed as an appointment as a probationer for a period of two

years.

6. The maximum age for the appointment against the post from

open category is of 33 years, as prescribed under Rule 9(4)(a) of the

Maharashtra Employees of Private Schools (Conditions of Service)

Rules, 1981, and the Deputy Director of Education is conferred with

the power to grant relaxation in upper age limit only in case of

workmen, ex-servicemen and persons having experience. Such

appointment has to be made with the previous permission of the

Deputy Director. Undisputedly, the relaxation granted by the Deputy

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Director, in the present case, is 3 years 2 months and 2 days. The

Tribunal has found that the petitioner was over-aged by five years on

the date of his initial appointment on 27-8-1997. There was no

previous direction of the Deputy Director of Education to relax the

upper age limit and it is also not the case that the petitioner had an

experience prior to his initial appointment on 27-8-1997. No fault

can, therefore, be found with the view taken by the Tribunal that the

petitioner was age-barred on the date of his appointment as Assistant

Teacher.

7. In view of above, there is no substance in the petition. The

petition is dismissed. No order as to costs.

JUDGE.

Lanjewar