Bombay High Court
Samrat Shikshan Prasarak ... vs Dnyandeo Uttamrao Dhandar & 2 Ors on 1 July, 2017
Bench: I.K. Jain
WP 3364.08+1.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.3364 OF 2008
WITH
WRIT PETITION NO.4434 OF 2008
WRIT PETITION NO.3364 OF 2008
Vilas Laxman Gavai,
Laboratory Attendant,
Sant Sureshbaba Vidyalaya,
Fubgaon, Tah. Nandgaon (Kh.),
District-Amravati. .. PETITIONER
.. VERSUS ..
1] Dnyandeo Uttamrao Dhandar,
Aged about 33 years,
R/o. Darapur, Tah. Daryapur,
District-Amravati.
2] Samrat Shikshan Prasarak Sanstha,
Sai Nagar, Amravati, through its
Secretary.
3] Head Master, Sant Sureshbaba
Vidyalaya, Fubgaon, Tahsil-
Nandgaon (Kh.), District-Amravati.
4] Education Officer (Secondary),
Zilla Parishad, Amravati. .. RESPONDENTS
..........
Shri A.Z Jibhkate, Advocate for Petitioner,
Shri V.A. Kothale, Advocate for Respondent No.1,
Smt. S.W. Deshpande, Advocate for Respondent Nos.2 & 3,
Shri H.D. Dubey, AGP for Respondent No.4.
..........
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WP 3364.08+1.odt 2
WITH
WRIT PETITION NO.4434 OF 2008
1] Samrat Shikshan Prasarak Sanstha,
Sai Nagar, Amravati,
through the Secretary/President.
2] Head Master, Sant Sureshbaba
Vidyalaya, Fubgaon, Tah. Nandgaon,
Khandeshwar, Distt. Amravati. .. PETITIONERS
.. Versus ..
1] Dnyandeo Uttamrao Dhandar,
Aged about 23 years,
Occupation-Nil,
R/o. Darapur, Tah. Daryapur,
District-Amravati.
2] The Education Officer (Secondary),
Zilla Parishad, Amravati,
Tahsil & District-Amravati.
3] Vilas Laxman Gawai,
Aged about Major,
Occupation-Service as
Laboratory Attendant,
Sant Sureshbaba Vidyalaya,
Fubgaon, Tahsil-Nandgaon (Kh.),
District-Amravati. .. RESPONDENTS
..........
Smt. S.W. Deshpande, Advocate for Petitioners,
Shri P.S. Raut, Advocate for Respondent No.1,
Shri H.D. Dubey, AGP for Respondent No.2,
Shri A.Z. Jibhkate, Advocate for Respondent No.3.
..........
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CORAM : KUM. INDIRA JAIN, J.
DATED : JULY 01, 2017.
ORAL JUDGMENT
Both these petitions take an exception to the
judgment and order dated 8.7.2008 passed in Appeal
No.25/1998 by the learned Presiding Officer, School Tribunal,
Amravati and they are disposed of by this common
judgment.
2] The facts giving rise to the petitions may be stated
in brief as under :
WRIT PETITION NO.3364 OF 2008
(i) Petitioner was appointed on 2.7.1993 on
the post of Peon with respondent no.3. Approval to the
appointment of petitioner was granted on 12.12.1995. As
the post of Laboratory Attendant was vacant, respondent
no.1 was appointed on the said post from 1.10.1996. The
contention of petitioner is that the post of Laboratory
Attendant was filled in without any advertisement,
interviews and without following the procedure prescribed
under the Maharashtra Employees of Private Schools
(Conditions of Service) Regulation Act, 1977 with Rules,
1981. (hereinafter referred to as "MEPS Act & Rules")
(ii) Petitioner made representation to the
management and requested for his appointment to the post
of Laboratory Attendant. On 24.8.1997, petitioner was
promoted to the post of Laboratory Attendant. Education
Officer granted approval to the said post on 27.12.1997.
(iii) Respondent no.1 filed an appeal before
the School Tribunal and the School Tribunal, vide order dated
8.7.2008, allowed the appeal filed by respondent no.1 and
declared that otherwise termination of respondent no.1 from
the post of Laboratory Attendant was illegal and void.
Management was directed to reinstate respondent no.1 with
continuity in service and back-wages. Petitioner, being
aggrieved by the order of School Tribunal, has preferred
present petition.
3] Heard Shri Jibhkate, learned counsel for petitioner,
Shri Kothale, learned counsel for respondent no.1,
Smt. Deshpande, learned counsel for respondent nos.2 & 3
and Shri Dubey, AGP for respondent no.4.
WRIT PETITION NO.4434 OF 2008
4] This petition is by the management. According to
management and school authority, appointment of
respondent no.1 was not in accordance with Section 5 of the
MEPS Act and Rule 9 of MEPS Rules. As an appointment was
not in accordance with the law and rules, submission is that
respondent no.1 is not entitled to the protection of his
services. The grievance is that the appointment which was
not in accordance with the law has been protected by the
impugned judgment and order of the School Tribunal.
5] Respondent no.1 has seriously resisted both the
petitions and filed affidavit-in-reply. It is submitted that
respondent no.1 was appointed on the post of Laboratory
Attendant and continued on the same post but
management and school authority in collusion with
petitioners filed complaint on the basis of manipulated
documents. The submission is that considering the collusive
stand of management, school and the petitioner, School
Tribunal had rightly allowed the appeal and no interference
is warranted in writ jurisdiction.
6] Heard Smt. Deshpande, learned counsel for
petitioners, Shri Raut, learned counsel for respondent
no.1, Shri Dubey, learned AGP for respondent no.2 and
Shri Jibhkate, learned counsel for respondent no.3.
7] According to learned counsel for petitioners
burden of establishing that appointment was made on a
clear and permanent post by following the procedure
laid down under the Act and Rules was not on the
management but on respondent no.1. It is submitted
that respondent no.1 has failed to establish that he was
appointed on the post of Laboratory Attendant by
following the procedure prescribed under the Act and
the Rules and, therefore, he was not entitled to
protection. The learned counsel pressed into service
the decision of this court in case of Rayat Shikshan
Sanstha and another .vs. Yeshwant Dattatraya Shinde
[2009 (6) Mh.L.J.476] laying down the proposition that
burden of establishing that appointment was made on a
clear and permanent post by following procedure laid
down under the Act and Rules is on the employee and
not on the management. So far as entry in service is
concerned, submission of learned counsel for
petitioners is that appointment of respondent no.1 was
for a temporary period and it was not against the
permanent post. In such circumstances, oral termination
of respondent no.1, according to petitioners, was just
and proper and the School Tribunal ought not to have
interfered with the order of oral termination, as entry of
respondent no.1 in service was the back-door entry.
In support of submissions, reliance is placed on :
(i) Ramkrishna Chauhan .vs. Seth D.M. High
School and others.
[2013 (2) Mh.L.J. 713]
(ii) Navjeevan Shikshan Sanstha, Bhishnur
and another .vs. Chandrashekhar
Anandraoji Rewatkar.
[2015 (1) Mh.L.J. 782] and
(iii) Judgment dated 6.5.2014 in Writ Petition
No.3681/2002.
[Civil Station Education Society and
one .vs. Education Officer (Secondary),
Nagpur and one].
8] Per contra, learned counsel for respondent no.1
submitted that burden of establishing that appointment
was made on a clear and permanent post by following
the procedure under the Act and the Rules was on
management and not on respondent no.1. The learned
counsel invited attention of this court to letter of
approval granted by Education Officer and submitted
that post was approved and management could not
show absence of respondent no.1 from duty in the
months of July, August and September, 1997 which
would clearly negative the contention of management
that appointment was of temporary nature. The learned
counsel submits that proper procedure for termination
of service of respondent no.1 was not followed and in
such a situation finding of fact recorded by the tribunal
cannot be interfered with in the exercise of extra-
ordinary writ jurisdiction. The learned counsel pressed
into service the following decisions :
(i) Sadhana Janardhan Jadhav .vs. Pratibha
Patil Mahila Mahamandal and others.
[2013 (2) Mh.L.J. 484]
(ii) Shri Krishan and others .vs. Union of India
and others. [2015 (2) Mh.L.J. 170].
(iii) Ram Bahadur Pandey and another .vs.
State of Uttarakhand and others.
[(2015) 2 SCC 142].
(iv) Manisha Sambhaji Jadhav .vs. Sant Kavi
Mahipati Maharaj Devasthan Trust,
Taharabad and others.
[2017 (2) Mh.L.J.657].
9] The learned AGP contends that proposal was
moved and the Education Officer has granted approval
on 7.12.1996 to the appointment of respondent no.1 for
a specific period and academic session 1996-97. It is
submitted that appointment of respondent no.1 was on
a temporary basis for a particular period and, therefore,
approval was granted by the Education Officer for a
specific period that is one academic session.
Submission is that appointment being for a specific
period, question of extending protection would not
arise.
10] Upon hearing the respective parties and on
going through the impugned judgment and order
passed by the School Tribunal, this court finds that the
contention of respondent no.1 that burden of
establishing that his appointment was made on a clear
and permanent post by following the procedure laid
down under the Act and the Rules was on the
management is misconceived. Section 5 of the MEPS
Act casts certain obligations on Management of private
schools. Every permanent vacancy in a private school is
required to be filled in in accordance with the procedure
prescribed in Section 5. It is not in dispute that the
appointments are made by private managements
against sanctioned posts and for that purpose the
workload available in each school is worked out by the
education department as per the norms laid down by
the State Government in this respect. The appointment
under Section 5 of the Act cannot be made privately or
through back-door. The judgment of the Hon'ble
Constitution Bench in case of Secretary, State of
Karnataka .vs. Umadevi [AIR 2006 SC 1806] and the
judgment of the Division Bench of this Court in case of
Uttam and others .vs. Municipal Council, Darwha and
others [1972 Mh.L.J. 874] clearly negatives the
submissions advanced by learned counsel for
respondent no.1 that appointment of respondent no.1
made by the management was not through the back-
door.
11] In view of the decision of this court in case of
Rayat Shikshan Sanstha (supra) burden lies on
respondent no.1 and not on the management. It was
for respondent no.1 to show that his appointment was
made on a clear and permanent post. There is nothing
on record to suggest that respondent no.1 was working
on a clear and permanent vacant post. In the absence
of pleadings and evidence in respect of compliance of
sub-section (1) of Section 5 of the MEPS Act, the
appointment of respondent no.1 could not be treated as
on probation for a period of two years in terms of sub-
section (2) of Section 5 of the MEPS Act. The Tribunal
has, therefore, committed an error in holding that
appointment of respondent no.1 was on a clear and
sanctioned post.
12] Further the observations in paragraph 13 of the
impugned judgment and order would indicate that there
are no pleadings of either parties that lawful
recruitment process was followed while giving
appointment to respondent no.1 that is no
advertisement was published to fill up the post, no
other candidate was called for interview and there was
no selection process undertaken. Despite these
observations , Tribunal held that the management is not
entitled to take benefit of its own wrong. Considering
the fact that respondent no.1 was appointed by the
management for an academic session 1996-97,
responsibility came to be fastened on the management
and the Tribunal held that the appointment of
respondent no.1 needs to be protected.
13] The above observations are contrary to the
settled position of law that in the absence of compliance
of Section 5 of the MEPS Act, back-door entry and
appointment cannot be protected. As respondent no.1
has failed to establish his case before the Tribunal, there
is no question of going into the defence raised by the
management in response to memo of appeal. At the
most, on the basis of material placed on record, it can
be said that management, without following the
procedure prescribed under Section 5 of the MEPS Act,
appointed respondent no.1 for a temporary period. As
respondent no.1 failed to establish that his appointment
was on a clear and permanent post by following the
procedure laid down under the Act and the Rules, this
court finds it unnecessary to go into the action of
management in appointing respondent no.1 for a
temporary period. However, considering the fact that
respondent no.1 had no right to post, relief of
reinstatement could not have been granted to him.
As this court finds that impugned judgment and order is
contrary to the settled proposition of law, interference
is warranted in writ jurisdiction. Hence, the following
order :
(i) Writ Petition No.3364/2008
Writ Petition is allowed. Rule is made absolute
in terms of prayer clauses (a) & (b). No costs.
(ii) Writ Petition No.4434/2008
Writ Petition is allowed. Rule is made absolute
in terms of prayer clause (i). No costs.
(Kum. Indira Jain, J.)
Gulande, PA
