Bombay High Court
Shri Sant Gajanan Maharaj ... vs Devendra Bhagwanji Matode & 2 Ors on 4 August, 2017
Bench: B.P. Dharmadhikari
Judgment lpa360.08
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
LETTERS PATENT APPEAL NO. 360/2008
IN
WRIT PETITION No. 1727/2007.
1. Shri Sant Gajanan Maharaj Bahuuddeshiya
Shikshan Prasarak Mandal, Khaparwada,
through its President, resident of Goyankar
Nagar, Tq. Murtizapur, Dist. Akola.
2. Head Master, Sau. Anusuyabai Sahebrao
Tapare Vidyalaya, Unkhed, Taluka
Murtizapur, Dist. Akola. ....APPELLANTS.
VERSUS
1. Devendra Bhagwani Matode,
Aged about 38 years, Occupation -
Service, resident of Dhanaj (Bu),
Tq. Karanja Lad, Dist. Akola.
2. Education Officer (Secondary)
Zilla Parishad, Akola,
Tq. and District Akola. ....RESPONDENTS
.
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Mr. R.M. Bhangde, Advocate for Appellants.
Mr. A. Parchure with D. Deshpande, Advocates for Respondent No.1.
Ms. R. Kalia, Asstt. Govt. Pleader for Respondent No.2.
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Judgment lpa360.08
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CORAM : B. P. DHARMADHIKARI
AND ROHIT B. DEO, JJ.
Date of Reserving the Judgment : 20.07.2017.
Date of Pronouncement : 04.08.2017
JUDGMENT. (Per B.P. Dharmadhikari, J)
Judgment delivered by the learned Single Judge on 08.10.2008 in
Writ Petition No.1727/2008, filed by the present appellant, dismissing it is
assailed before us. The said Writ Petition was filed by the
appellant/employer against the judgment and order dated 12.03.2007
delivered by the Presiding Officer, School Tribunal, Amravati. Present
respondent no.1 approached the School Tribunal challenging his termination
w.e.f. 17.06.2000. School Tribunal has set aside the oral termination order
dated 14.08.2000 retrospectively w.e.f. 17.06.2000, ordered reinstatement
of respondent no.1 as Assistant Teacher with continuity of service and back
wages.
2. The said direction is stayed by this Court in present Appeal on
27.01.2009. On 26.11.2008, while admitting the Appeal, this Court had
Judgment lpa360.08
granted interim relief subject to deposit of back wages as awarded by the
School Tribunal. The employer deposited an amount of Rs.2,94,000/- on
19.01.2009 and expressed its inability to deposit the balance amount of Rs.
2,58,641/-. This Court on 27.01.2009, extended time to deposit that
amount. On 25.03.2009, while passing orders on Civil Application (Z) No.
74/2009, moved by respondent no.1 seeking leave to withdraw the amount
of Rs. 2,58,641/-, subject to furnishing security and on condition to deposit
that amount back with 8% interest within 12 weeks, if Letters Patent Appeal
be allowed, that permission to withdraw was granted. Accordingly Rs.
2,58,641/- is withdrawn by respondent no.1 Assistant Teacher and balance
amount is still lying with the registry of this Court.
3. Shri Bhangde, learned Counsel submits that respondent no.1
Assistant Teacher did not possess necessary training qualification and as
such had no right to post, therefore, appellants were engaging him on year
to year basis. He procured B.Ed. degree in May, 2000 and then claimed that
he was orally terminated on 14.08.2000. He is relying upon express
stipulation in the appointment order to show that respondent no.1 could not
have staked any claim to permanency or appointment on probation because
of those orders. By order dated 14.03.2000, he was informed that he would
stand relieved on 30.04.2000, and respondent no.1 has acknowledged that
Judgment lpa360.08
order. Thereafter he did not report for duties. He is relying upon the Full
Bench judgment of this Court reported at 2013 (2) Mh.L.J. 713
(Ramkrishna Chauhan .vrs. Seth D.M. High School and others), to
substantiate his contentions.
4. Shri A. Parchure with Shri D. Deshpande, learned Counsel for
respondent no.1 is relying upon the concurrent findings by the School
Tribunal as also by the learned Single Judge to substantiate that on the basis
of undertaking given by the appellant, respondent no.1 was allowed to
undergo vacation B.Ed. Course from the academic session 1998-99 onwards.
He completed that course in March, 2000 and passed the examination and
obtained degree on 03.05.2000. The appellant Management therefore was
duty bound to act on its undertaking and to permit respondent no.1 -
teacher to join back after summer vacation in June, 2000. He points out that
the oral termination has taken place on 14.08.2000. He is strongly relying
upon the undertaking dated 16.03.1998 submitted by the Headmaster i.e.
appellant no.2 in support of his contention. He further states that Section 5
of the Maharashtra Employees of Private Schools (Conditions of Service)
Regulation Act, 1977 (hereinafter referred to as "the MEPS Act" for short) is
very clear and said provision has been correctly looked into by the School
Tribunal as also by the learned Single Judge. According to him the stand of
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management is unsustainable as it not only militates with the undertaking,
but, also with the provisions of law.
5. Shri Bhangde, learned counsel in reply arguments has urged that
there cannot be a estoppel against law and has relied upon certain
judgments. We will refer to those judgments at appropriate juncture,
during discussion.
6. Pleadings show that respondent no.1 challenged order of
termination dated 14.08.2000, which allegedly put end to his services from
17.06.2000. It is not in dispute that he was untrained graduate teacher. He
worked as such from 1994-95 in the academic sessions only. In academic
session 1998-99 he was appointed and admitted to Vacation B.Ed. on
16.03.1998. After school reopened on 17.06.2000, he reported for duties,
but, was asked to wait. On 14.08.2000 he was orally informed about his
termination from 17.06.2000.
7. Provisions of Section 5 of the MEPS Act and the issue whether in
the backdrop of the mandate contained therein, the employer can appoint a
teacher temporarily, though a permanent vacancy is available, has been
looked into by the Full Bench of this Court in the case of Ramkrishna
Chauhan (supra). In paragraph no. 28, the controversy has been answered
as under :
Judgment lpa360.08
"28. Accordingly, we are inclined to answer the
issue in the negative. We hold that it is not open to
the School Tribunal to assume as of fact that the
appointment made against a clear and permanent
vacancy is deemed to be on probation, within the
meaning of Section 5[2] of the Act. The School
Tribunal cannot disregard the terms and conditions
of the letter of appointment, if it expressly provides
that the appointment is on temporary basis, for a
limited term."
8. It is therefore, apparent that the management can in certain
situation appoint a person temporarily. In 2010 (3) Mh.L.J. 666 (Sanjay
Lalbahadur Divedi .vrs. Shrikrishna Vyayam Shala and others), learned
Single Judge of this Court found that the employee has to establish
availability of permanent vacancy and necessary qualification with him as
also his selection after proper selection process. Learned Single Judge has
also observed that even after acquiring training qualification for permanent
selection and appointment on probation, teachers like respondent no.1 has
to compete with others.
9. Other Single Judge of this Court in 2010 (4) Mh.L.J. 718 (Vidya
Bharti Shikshan Sanstha, Goregaon .vrs. Presiding Officer, Additional
School Tribunal, Nagpur and others), has found that there is no obligation
Judgment lpa360.08
upon the management to absorb an employee who earlier worked with it as
untrained teacher and then acquired training qualification. In order to claim
right to post, such person must establish that he was selected after proper
selection process.
10. In 1999 (II) CLR 1103 ( Y.P. Kulkarni .vrs. Anita Anilkumar
Abhand), again this aspect has been reiterated and it is further noted that
when the teacher did not hold training qualification, no estoppel can be
pleaded against management. There circular dated 05.11.1997 issued by
the State Government was relied upon by the teacher to urge that the State
Government has extended time for acquiring necessary qualifications. In
the light of Full Bench judgment (supra), we need not comment more on
this aspect.
11. In (2002) 2 SCC 188 (Sharma Transport .vrs. Government of
A.P. and others), in paragraph no.24 the Hon'ble Supreme Court has held
that a Government or Public Authority cannot be compelled to perform a
promise which is contrary to law.
12. Here it is not the case of respondent no.1 Assistant Teacher that
after 17.06.2000, any recruitment process was carried out by his employer
and vacancy available for him has been filled in. He claims oral termination
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on 14.08.2000, retrospectively from 17.06.2000. He waited till 14.08.2000,
as he did not have necessary appointment order, as last appointment expired
before summer vacation of the year 2000. When his last appointment order
expired, he was not holding necessary qualification. Thus, in absence of
proper advertisement and his participation in open competitive selection
process, respondent no.1 could not have and cannot claim any right to post.
He could not have been reinstated at all.
13. We therefore, quash and set aside the judgment dated 08.10.2008
delivered by the learned Single Judge and allow Writ Petition
No.1727/2007.
14. Consequently the amount lying in deposit with the Registry of this
Court is allowed to be withdrawn by the appellant Management. The
amount already withdrawn by respondent no.1 shall be refunded by him as
per directions contained in order dated 25.03.2009.
15. Letters Patent Appeal is accordingly allowed in aforesaid terms,
with no order as to costs.
JUDGE JUDGE
Rgd.
