Anjuman Tausi-E-Taleem And Ors vs Mohmed Akhalaque Mohmed Anwar ...
2017 Latest Caselaw 7049 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CIVIL APPELLATE JURISDICTION

                        WRIT PETITION NO.4429 OF 2001
                                     ...
1.         Anjuman Tausi-E-Taleem
           through its President
2.         The Head Master,
           Anglo Urdu High School

3.         Mr.Mohmed Asmat Bubere
           President

4.         Mr.Mustafa S.Pounjekar
           Vice President

5.         Mr.Abdul Raheem Bhaiji
           Secretary

6.         Mr.Ibrahim K.Adhal
           Secretary                                          ...Petitioners
                                        (Org.Respondent Nos.1, 2, 3, 7, 8, & 9)

           v/s.

1.         Mr.Mohmed Akhalaque Mohmed
           Anwar Dhongre

2.         Mr.Zaid Mustafa Naje
           General Secretary

3.         Mr.Abdul Kadir Hasan Tiwale
           Treasurer

4.         Mr.Anwar A.R.Dhongre
           Vice President

5.         Mr.Abdul Rashid A.Dhongre
           Member


6.         Mr.Gulam Rassod B.Nachan
           Member


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7.         Mr.Shafique A.Dhongre,
           Member

8.         Mr.Abdul Kadri A.K.Juari
           Member

9.         The Education Officer
           Secondary Section, Z.P.,Raigad

10.        The Presiding Officer,
           School Tribunal, Pune                                  ...Respondents
                                        (Org. Appellant, Org.Resp Nos.4,5,6,10-14)

                                              ...

Mr.N.V.Bandiwadekar for the Petitioners.
Mr.Subhash Langote with Mr.Vishnu Madane for the Respondent No.1.
Mr.Dilip Bodake for the Respondents Nos.2 and 4 to 8.
Mr.A.R.Metkari, AGP for State.
                                   ...

                                           CORAM :          A.A. SAYED J.
                                     RESERVED ON  :         9 MARCH 2017
                                     PRONOUNCED ON:         13 SEPTEMBER 2017

JUDGMENT:

The challenge in this Petition under Articles 226 and 227 of the

Constitution is to the judgment and order dated 26 February 2001

passed by the School Tribunal, Pune Region, Pune, in an Appeal filed by

the Respondent No.1/Org. Appellant under section 9 of the Maharashtra

Employees of Private Schools (Conditions of Service) Regulation

Act,1977 challenging his otherwise termination. By the impugned order

the School Tribunal allowed the Appeal of the Respondent No.1 and set

aside his otherwise termination and the Management was directed to

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reinstate the Respondent No.1 with full backwages. The operative part of

the impugned judgment reads as follows:

"ORDER

1. The Appeal is allowed.

The impugned action on the part of the Respondent No.1/Management in terminating services of the Appellant otherwise at the commencement of the academic year 2000-2001 is hereby set aside.

The Respondent No.1/Management is hereby directed to reinstate the Appellant in service as an Asst.Teacher with full backwages.

2. No order as to costs.

Respondents to comply with the above directions within a period of two months from the receipt of this order.

It is hereby recommended to the State Government that the backwages directed to be paid to the Appellant may be deducted from the grant due and payable to the Management and be paid to the employee direct."

2. For the convenience of reference, I shall refer to the parties as

they were arrayed in the Appeal before the School Tribunal.

3. The case of the Appellant (Respondent No.1 herein) in the

Appeal was as follows:

The Management was running a secondary school under the

name and style of 'Anglo Urdu High School at Nerul'. The Management

appointed him as a junior clerk in the school with effect from 02-08-1993

vide an order of appointment dated 25-07-1993. Thereafter, he came to

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be appointed as Assistant teacher on regular basis with effect from June

1994. At the time of his appointment, he was B.Com. D.Ed. In addition

to the work of Assistant teacher, he was also asked to discharge the

duties of clerk. He then took admission for part-time B.Ed. course and

completed the said B.Ed. course in March 1999. The Management had

given an undertaking dated 01-01-1997 to the effect that they would

continue him as an Assistant teacher during his B.Ed. course and even

after completion of that course. He had served in the school as Assistant

teacher. He was however not paid the salary since June 1996. Two

appointment orders dated 26-09-1996 and 01-06-1997 came to be

issued in his name. His appointment as Assistant teacher was on a clear

and permanent vacancy. Therefore, his appointment was on probation.

He had acquired the status as a probationer. The appointment orders

issued to him were for one academic year, but that could not affect his

status as a probationer and on completion of two years employment, he

was deemed to be a permanent employee. He was never issued any

memo or warning during his service. However all of a sudden on 15-06-

1998 he was issued an order of termination dated 29-04-1998

terminating his services with effect from 30-04-1998. He preferred

Appeal No.43/1998 before the School Tribunal challenging the legality

and validity of the order of termination. When the notice of the Appeal

was served upon the Management, vide letter dated 28-06-1998

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communicated to him that his services were continued with retrospective

effect w.e.f. 15-06-1998 as per the Resolution passed on 28-06-1998.

As his services were continued he has submitted a pursis dated

28-07-1998 before the Tribunal, which was counter signed by the

General Secretary of the Management namely Zaid Mustafa Naje -

Respondent No.4. Salim Shaikh, the Head of the School and Mahmad

Asmant Bubere, the President-Respondent No.3 and one Mustafa

H.Pounjekar-Respondent No.7, who had some grudge against him were

trying to harass him and spoil his service record. Though, he continued

to serve in the school, he was not allowed to sign the muster from the

commencement of the academic year 1999-2000. He made

representation dated 16-09-1999 to the Head of the School. He also

approached the office bearers of the Management contending that he

had not been allowed to sign the muster and he would therefore

approach the School Tribunal. He was then allowed to sign the muster

roll with retrospective effect i.e. from June 1999. When the School

reopened after summer vacation on 12-06-2000, he was not allowed to

sign the muster roll or discharge his duties. No order of termination was

issued to him. No meeting of the Management had taken place since

January 1999 and therefore no decision taken or any resolution pass to

terminate his services. He was a permanent employee and could not

have been terminated unless he was found guilty of serious charges of

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misconduct and only if such charges were proved before the duly

constituted Inquiry Committee. His father himself being one of the Vice

Presidents of the Management, he could not take any legal action

immediately against the Management or against the Head of the school.

He, therefore, made representation dated 15-9-1999 to the Head of the

School. Even, thereafter till December 1999 he continued to work in the

School, but he was not allowed to sign the muster. The Head Master or

the President of the Management had no right or authority to terminate

his services and their action was not supported by any decision of the

Management. Majority members of the Management were supporting

him and not in favour of terminating his services.

4. Written Statement was filed in the Appeal on behalf of the

Respondent No.1 (Management through its President), Respondent

No.2 (Head Master), Respondent No.3 (Mohmed Asmat Bubere-

President), Respondent No.5 (Abdul Kadir Hasan Tiwale-Treasurer),

Respondent No.7 (Mustafa S.Pounjekar-Vice President), Respondent

No.8 (Abdul Raheem Bhaiji- Joint Secretary), Respondent No.9 (Ibrahim

K. Adhal-Secretary), Respondent No.11 (Gulam Rasood B.Nachan-

Member) and Respondent No.13 (Abdul Kadri A.K.Juari-Member), who

were the office bearers of the Management. Their case in the Written

Statement was as follows:

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The documents produced on record would show that bonafide

efforts were made by the Respondents to appoint the Appellant as

Assistant Teacher in the school. The Appellant was appointed for a fixed

period purely on temporary basis from time to time as honorary

Assistant teacher at his request and request of Respondent No.6- Anwar

Dhongre, the father of the Appellant, who happens to be the first Vice

President of the Institution. They had helped the Appellant for getting

admission for B.Ed. course while working as honorary Assistant teacher.

They had even sent a proposal for approval of the Appellant to the post

of Assistant teacher to the Education Officer, Zilla Parishad, Raigad.

However, in spite of all efforts, the Education Officer refused to approve

his appointment as Assistant teacher on the ground that he had no

requisite qualification i.e. B.Sc. B.Ed. The Education Officer by his

several letters refused to appoint the Appellant as Assistant teacher in

the School. They did not have any right or authority to appoint the

Appellant and it was the Education Officer who was the appointing

authority and he had refused to approve the appointment of the

Appellant. The Appellant himself had left the post of clerk and had

requested to appoint him as honorary Assistant teacher and the

Respondents helped him getting admission for B.Ed. course. One Khan

was appointed in place of the Appellant as a clerk and thereafter Asif

Lagad, who is the relative of the Appellant, who had been brought by the

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Appellant himself, was appointed as a clerk in place of Khan and till date

the said Asif Lagad is permanently working as a clerk in the school.

There is only one post of clerk in the school and the said post is

permanently occupied by Asif Lagad. The Appellant himself on his own

accord has left the post of clerk and under undue pressure and influence

of his father (Respondent No.6), who was the Vice President of the

Institution, he came to be appointed as honorary Assistant teacher in the

school temporarily for a fixed period of eight months i.e. from 01-10-1996

to 31-05-1997. In order to facilitate and assist the Appellant to complete

the B.Ed. course, he was appointed as honorary Assistant teacher

temporarily for a period of one year i.e. from 13-06-1997 to 29-04-1998

on the request of his father (Respondent No.6-Vice President of the

Management). In the meantime, the Education Officer vide letter dated

13-04-1998 informed and directed the Principal-Respondent No.2 that

the Appellant was only B.Com. and as per the Rules, eligibility for the

post of Assistant teacher is B.Sc. B.Ed., or B.A. B.Ed., and therefore the

Appellant was not eligible for the post and that such type of untrained

teacher should not be appointed in future. After receipt of the aforesaid

letter dated 13-04-1998 of the Education Officer, the Respondents rightly

and legally terminated the services of the Appellant with effect from

30-04-1998. Since the appointment of the Appellant was only for a

limited period of one year on temporary basis no letter of termination

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was required to be issued. In the meantime, on 17-03-1999, the Block

Education Officer, Karjat during his inspection made following remarks

against the Appellant:

"It is a serious misconduct that Mr.Akhalaque Dhongre, B.Com.B.Ed., whose appointment was refused, is still working. Instead of him B.A. B.Ed. or School subject teacher be appointed".

After expiry of one academic year, in view of the aforesaid remarks

passed by the Block Education Officer dated 17-03-1999, the Appellant

was not allowed to work and teach in the school. No notice of

termination was issued as the Appellant was not appointed either on

probation or permanently and as his appointment was on purely

temporary for a fixed period of one year. Since June 1999, they never

appointed the Appellant to work as Assistant teacher in the School, the

Appellant with the help of his father who was the Vice President

(Respondent No.6) and the General Secretary (Respondent No.4)

forcibly and highhandedly used to work as honorary Assistant teacher in

the school against the rules and regulations of Department of Education

and also against the wishes of the Respondents and the School

Committee Members. The Respondent No.6-Vice President and the

Respondent No.4-General Secretary are highly influential persons

having strong roots in the local area of Neral, Karjat. They had assured

the Managing Committee and the School Committee Members that after

completion of B.Ed. course by the Appellant, they will bring approval and

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the sanction of the Appellant for the clear vacancy of Assistant Teacher

from the Education Officer and therefore the Managing Committee

reluctantly and in good faith did not stop the Appellant to attend the

school and teach students, though the performance of the Appellant was

very poor and totally unsatisfactory. The Head Master of the School

received letters from the Education Officer dated 18-03-2000 and 09-05-

2000 calling upon his explanation on the complaint of one A.A.Naze

against the Appellant. The said letter was replied to by the Head Master.

Again on 04-02-2000, the Block Education Officer, Panchayat Samiti,

Karjat, during his yearly inspection to the school passed following

remarks against the Appellant as well as the Managing Committee:

"Mr.Akhalaque Dhongre is B.Com. B.Ed. His appointment as a teacher was already refused. He is still kept by the institution. Immediate action be taken for the same. Instead of B.Com. B.Ed., B.Sc. B.Ed. teacher be appointed."

The Appellant himself requested for his appointment as honorary

Assistant teacher from time to time temporarily for a fixed period. The

Appellant was terminated on 30-04-1998. Thereafter, his services were

finally terminated and expired automatically at the end of one year fixed

term period i.e. in the month of April 1999. Various remarks and letters of

the Education Officer from time to time show that the Appellant was not

possessing requisite qualification and the Appellant had to be removed

from services from the post of honorary Assistant teacher. They had

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rightly, legally and in the interest of the Institution and School stopped the

Appellant from attending the school and teaching the students. It was

not correct to say that the Appellant was working as a teacher from June

1994 and asked to discharge duties of clerk. The Appellant as a matter

for fact was working as only clerk upto year 1996. The Respondents

Nos.4 and 6 forced the Managing Committee to appoint the Appellant as

honorary Assistant teacher in the School and to allow him to do B.Ed.

course. It was not true to say that the Management had given any

undertaking to the Appellant. In fact vide letter dated 1-01-1997, the

Respondent No.3-Mohmed Bubere in good faith assured the Appellant to

appoint him as Assistant teacher subject to successful completion of

B.Ed. course and subject to approval and sanction of the Education

Officer. It is not true that the Appellant was appointed on regular basis. It

was not true to say that the Appellant was not paid his salary from June

1996. The Respondent Nos.1 and 3 were not at all aware of the alleged

Resolution dated 28-06-1998 passed in the Meeting of Management

thereby continuing the services of the Appellant with retrospective effect

from 15-06-1998 and they were shocked and surprised to find and see

the copy of the alleged resolution, which was served alongwith the

Appeal Memo for the first time. As a matter of fact, Management

meeting was held on 28-06-1998 and it was resolved in the said meeting

that the Appellant who has been terminated on 30-04-1998 was

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reappointed for next academic year 1998-99 temporarily as Assistant

teacher. Immediately thereafter, the Respondent No.3 called upon the

Respondent Nos.6 and 4 and the Appellant to give explanation regarding

the aforesaid false and fabricated Resolution alleged to have been

passed in the Management meeting on 28-06-1998. However, they

refused to meet the Respondent No.3. The Respondent No.3, thereafter,

called minutes book of the said meeting dated 28-06-1998 from the

General Secretary (Respondent No.4). The Respondent No.4, however,

said that the minutes book and other documents are in the custody of the

first Vice President (Respondent No.6)-father of the Appellant. The

Respondent No.3, therefore, issued a notice dated 04-08-2000 to the

Respondent No.6 calling upon him to handover and submit the minutes

book and other documents of the Institution in the office of the school.

However, the Respondent No.6 refused to acknowledge the receipt of

the notice dated 04-08-2000 and he was avoiding and refusing to hand

over and submit custody of the minute book and other documents. Since

the Respondent No.6 refused to acknowledge the receipt of the notice, a

statement of Asif Lagad who had delivered the said notice/letter dated

04-08-2000 to the Respondent Nos.4 and 6 was called upon by these

Respondents and he has vide 12-08-2000 submitted that he has

delivered the letter to the Vice President (Respondent No.6) and Rashid

Dhongre (Respondent No.10), however they have refused to

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acknowledge receipt of the same. The documents filed by the Appellant

at serial Nos.11 and 12 alongwith the list of documents were false and

fabricated. No such resolution was ever passed in the meeting thereby

continuing the services of the Appellant from 15-06-1998. The signature

of the Respondent No.3 on the aforesaid documents i.e. letter dated

28-06-1998 and the resolution of the meeting of the Managing

Committee have been obtained by the Respondents Nos.4 and 6 by

fraud and misrepresentation. Respondents Nos.4 and 6 have committed

serious criminal offence by fabricating false documents. These

Respondents did not have any personal grudge against the Appellant

and on the contrary made good and genuine efforts to help the Appellant

during the course of B.Ed. After receipt of the letter dated 15-09-1999

these Respondents orally informed the Appellant that the Education

Officer has to give approval and sanction to his appointment and

therefore he should not attend the school. However, the Appellant with

the help of Respondents Nos.4 and 6 forcibly and unauthorizedly

attended the school as honorary Assistant teacher. The Appellant was

working as honorary Assistant teacher from time to time till October 1996

till he terminated in the year 1998.

5. Separate Written Statement was also filed on behalf of the

Respondents No.4 (Zaida Mustafa Naje, General Secretary),

Respondent No.6 (Anwar A.R.Dhongre, Vice President), Respondent

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No.10 (Abdul Rashid A.Dhongre, Member) and Respondent No.12

(Shafique A.Dhongre, Member), before the School Tribunal. In the said

Written Statement, it is interalia pointed out that the Resolution dated 28-

06-1998 was signed by the Respondents Nos.3 & 4 and therefore the

Respondents Nos.1 and 3 were aware of the said Resolution dated 28-

06-1998. It is pointed out in the said Written Statement that the letter

dated 04-08-2000 was received by the Respondent No.3 on 14-08-2000,

but he refused to acknowledge the same. A separate Written Statement

was also filed before the School Tribunal on behalf of the Respondent

Nos.11 (Gulam Rassod B.Nachan, Member) and Respondent No.13

(Abdul Kadri A.K. Juari, Member).

6. After hearing the parties, the School Tribunal vide the impugned

order dated 28 February 2001 allowed the Appeal of the Respondent

No.1/original Appellant as indicated in paragraph 1 hereinabove.

7. I have heard Mr.Bandiwadekar, learned Counsel for the

Petitioners, Mr.Langote, the learned Counsel for the Respondent

No.1/original Appellant, Mr.Bodake, learned Counsel for the

Respondents Nos. 2, 4 to 8 and the learned AGP for the State.

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Mr.Bandiwadekar has placed reliance on the following judgments:

i. Sanjay Lalbahadur Divedi v/s. Shrikrishna Vyayam Shala, 2010 (3) Bom.C.R. 604;

ii. Harlal Harchand Pardeshi v/s. State of Maharashtra and ors., 2001(1) Mh.L.J. 859;

iii. Priyadarshini Education Trust and ors. v/s. Ratis (Rafia) Bano d/o Abdul Rasheed and ors., 2007 (6) Mh.L.J. 667;

iv. Ramkrishna Chauhan and ors. v/s. Seth D.M.High School and ors., 2013 (2) Bom.C.R.481;

v. Mrs.Sneh Kohli v/s. The Universal English Trust & Ors., Writ Petition No.5247 of 1998 (A.S.) decided on 18 October 2016;

vi. Datta Shelke Education Society and anr. v/s. Namdeo Shankar Patil and ors., 2010(5) Mh.L.J. 543;

vii. Rayat Shikshan Sanstha and anr. v/s. Yeshwant Dattatraya Shinde, 2009 (6) Mh.L.J. 476;

viii. Deepali Gundu Surwase v/s. Kranti Junior Adhyapak Mahavidyalaya, 2014 (2) Mh.L.J. 480;

ix. Pragnya Vasant Acharya v/s. The State of Maharashtra & ors., Writ Petition No.767 of 2007 (decided on 12 December 2012);

x. Pragati Mahila Samaj and anr. v/s. Arun s/o Laxman Zurmure and ors., (2016) 9 SCC 255;

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xi. Mangala B. Kulkarini v/s. The Chairman, Chhatrapati Shikshan Mandal & ors., Writ Petition No.4950 of 2004 (Decided on 4 January 2017);

Mr.Langote has relied upon the following judgments:

i. Yogeshwar Vikas Sanstha & ors. v/s. Rajendra T.Shinde & Anr., 2007(6) Mh.L.J. 698;

ii. Raghunath Bapu Nangare Vs. Jai Shivrat Shikshan Prasarak Mandal & ors., 2016 (1) Bom.C.R.236;

iii. The Secretary, Niti Niketan Shikshan Sanstha & Anr. v/s Smt.Vaishali Ramdas Thote & Anr., 2016(2) All MR 371;

iv. Anjuman Khairul Islam & ors. v/s. Zulekha Mazhar Hussain (Mrs.) and ors., 2001(1) Bom.C.R. 556;

v. Malanbai d/o Tukaram Satpute v/s. Deputy Director of Education & ors., 2002(2) Bom.C.R. 677;

vi. Suryakant Sheshrao Panchal v/s. Vasantrao Naik Vimukta Jati, Bhatakya Jamati Aadarsh Prasarak Mandal and ors., 2002(3) Mh.L.J. 659;

vii. Dnyan Vikas Mandal v/s. Parashram s/o Laxman Lokhande and ors., 1991 Mh.L.J. 830;

viii.Sadhana Janardhan Jadhav v/s. Pratibha Patil Mahila Mahamandal, 2013(2) Mh.L.J. 484;

ix. High School Education Society v/s. Presiding Officer, School Tribunal & anr., 2005 (2) All MR 138;

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x. Ravindra Singh v/s. Phool Singh and another, (1995) 1 SCC 251;

xi. Union of India and ors. v/s. Dhanwanti Devi and ors., (1996) 6 SCC 44;

xii. Union of India v/s. Chajju Ram (Dead) by L.Rs. & ors., 2003(3) All MR 766(S.C.);

xiii. Abdul Rafiq Abdul Hamid v/s. Yavatmal islamia Anglo Urdu Education Society and ors., 2014(3) Mh.L.J. 99;

xiv. Shamin Azad Education Society, Giroli v/s. Presiding Officer, School Tribunal, Amravati and ors., 2014(4) Mh.L.J. 723;

xv. Sant Gajanan Maharaj Bahu Uddshiya Shikshan Prasarak Mandal & ors. v/s. Devendra Bhagwani Matode & ors. WP No.1727/2007 (Decided on 08-10-2008);

xvi. Shri Sambhaji Iswhar Kalkambkar v/s. Sharada Shikshan Prasarak Mandal & ors. WP No.712 of 2013 (Decided on 6-12-

2013)

Mr.Bodake has relied upon the judgment in the case of Namdeo s/o

Pandurang Khedkar v/s. Shahi Gupta Masjid Chandrapur, 2014(3) All

MR 592.

8. At the outset, it is required to be noted that it was the Respondent

No.1/original Appellant's own case before the School Tribunal that

initially his qualification was B.Com.D.Ed when he was appointed as a

junior clerk with effect from 02-08-1993 vide appointment order dated 25-

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07-1993. The Appellant has averred in the Appeal that thereafter he was

appointed as Assistant teacher in the school on regular basis from June

1994. It was his case that in addition to the work of Assistant teacher he

was also asked to discharge duties as clerk. The same, however, is

denied by the Management in their Written Statement. As a matter fact,

they have stated in their Written Statement that the Appellant had left the

post of clerk and requested the Management to appoint him as honorary

Assistant teacher and to help him for getting admission to B.Ed. course

and at that time one Khan was appointed as a clerk and thereafter one

Asif Lagad, who was the relative of the Appellant was appointed as a

clerk in place of Khan and the said Asif Lagad is working as clerk in the

school and the said post is permanently occupied by him. The Appellant

has himself stated in his Appeal that at the relevant time when he was

appointed as Assistant teacher from June 1994, he was encouraged by

the Respondents Nos. 1 to 13 for taking admission for his B.Ed. course

to enable him to secure B.Ed. course and the Management had given

undertaking on 01-01-1997 that the Appellant would continue to the post

of Assistant teacher during his B.Ed. course and after completion of the

B.Ed. course. He had accordingly, taken admission for part time B.Ed.

course and completed his B.Ed. course in March 1999. Pertinently, in the

Affidavit dated 11-12-2000 (at page 190 of the Petition) of the Appellant

filed before the School Tribunal, he has stated in para (4) that at the

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relevant time there were no funds available with the Institution and there

were nobody available with the Institution to discharge the duty of

Assistant teacher properly. Therefore, the Institution asked him to work

as Assistant teacher and "directly" appointed him as Assistant teacher

with assurance that they would issue him an order of appointment in due

course. The Appellant has referred to the two order of appointment dated

29-09-1996 and 01-06-1997. The said appointment orders clearly state

that the appointment of the Appellant is temporary and for a fixed period.

9. From the aforesaid, atleast three things are evident and can hardly

be disputed, namely -

(I) that the Appellant was not duly appointed by following the

prescribed procedure i.e. advertisement inviting

applications, holding selection process, interview etc.

(II) that at the time of appointment of the Appellant as Assistant

teacher in 1994/1996, he did not have the requisite

qualification of B.Ed. and he acquired B.Ed. degree only in

March 1999. The Education Officer had not approved the

appointment of the Appellant as Assistant teacher.

(III) that the appointment orders state that the appointment of

the Appellant as Assistant Teacher was temporary and for

a fixed period.

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10.1 I shall first deal with Clause (I) of paragraph 9 above. Under

section 5(1) of the MEPS Act, an appointment is required to be made in

the manner prescribed. In the Written Statement the Management has

denied that the Appellant was appointed on a regular basis. In

Priyadarshani Education Trust and ors. v/s. Ratis (Rafia) Bano d/o

Abdul Rasheed and ors., (supra), the Division Bench of this Court after

referring to several judgments of the Supreme Court including that of

Secretary, State of Karnataka v/s. Umadevi, 2006(4) SCC 1, held in

paragraph 12 as follows:

"...In view of the provisions as contained in section 5 of the MEPS Act and Rule 9 of the MEPS Rules read with Articles 14 and 16 of the Constitution, and

the observation of the Hon'ble Apex Court in the reported Judgment which

guide us, we draw the following conclusions:

(i) Duly appointed in the manner prescribed, would be an appointment of a

person who is eligible (qualified for the post) for appointment, who is selected

by due process of selection i.e. by competition amongst all eligible and

desirous candidates, and who is appointed on a permanent vacant post. In

other words, inviting applications, as also holding of screening tests, enabling

all eligible and desirous candidates to compete for selection and appointment,

is a must...".

10.2 In the present case, it is an admitted position that the Appellant

was working as a junior clerk and thereafter appointed as Assistant

teacher 'directly'. The Appellant, therefore, obviously was not duly

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appointed after following the prescribed procedure of issuing

advertisement inviting applications, holding of screening tests, interview

etc. It is admitted by the Appellant in paragraph 4 of his Affidavit dated

11-12-2000 filed before the School Tribunal (at page 190 of the Petition)

that he was working as a clerk with the School and he was `directly'

appointed as Assistant teacher as nobody was available in the School to

discharge the duty of Assistant teacher properly. In these circumstances,

I have no hesitation in concluding that the appointment of the Petitioner

to the post of Assistant Teacher was not a valid appointment in the eyes

of law.

11.1 I now come to Clause (II) of paragraph 9 (re qualification). Sub-

section 1 of Section 5 of the MEPS Act mandates that the Management

is required to appoint a person who is duly qualified. The qualifications

are prescribed by Rule 6 and Schedule `B' of the 1981 Rules. B.Ed.

degree is an essential qualification for being appointed as Assistant

Teacher in a secondary school. In Datta Shelke Education Society and

anr. v/s. Namdeo Shankar Patil and ors., (supra), a learned Single

Judge of this Court has held that if an employee lacks requisite

qualification for being appointed as an Assistant teacher and his services

are terminated, then his initial appointment being contrary to law, he is

not entitled to reinstatement in service. It is an admitted position that at

the time of appointment of the Appellant as Assistant teacher in 1994 (as

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claimed by him) he did not possess the requisite degree of B.Ed. and he

acquired the qualification of B.Ed. only in March 1999. Thus, at the time

of his appointment as Assistant teacher, the Appellant was not duly

qualified.

11.2 The learned Single Judge of this Court in the aforementioned case

of Datta Shelke Education Society has followed the decision in the

case of Sanjay Lalbahadur Divedi v/s. Shrikrishna Vyayam Shala,

(supra), wherein it has been observed by the learned Single Judge that

if the essential educational qualification for recruitment to a post is not

satisfied, ordinarily the same cannot be condoned and an appointment

which is contrary to the statute/statutory rules would be void in law and

such illegality cannot be regularized. The learned Single Judge further

held that even after acquiring training qualification, for permanent

selection and appointment on probation, the candidates have to compete

with others. After getting B.Ed. qualification, it is not permissible to avoid

competition with trained teachers when post is sought to be filled in

permanently. In these circumstances, the Appellant in the present case

admittedly not being qualified at the time of his appointment as Assistant

Teacher, his appointment was clearly unlawful.

12.1 I shall now discuss Clause (III) of paragraph 9 (re temporary

employment). Firstly it needs to be stated that once it is seen that an

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appointment, whether temporary or permanent, is made without following

the prescribed procedure, the appointment would be a backdoor entry

and no protection of service can be granted to such an appointment.

Even otherwise, assuming that a temporary appointment is made after

following the prescribed procedure even then such temporary

appointment cannot be granted protection. In the present case, it is

stated by the Appellant himself in his Appeal before the School Tribunal

that the appointment orders issued to him as Assistant Teacher were for

one academic year. The appointment of the Appellant was thus a

temporary appointment for a limited period. However, inasmuch as the

Counsel for the parties have canvassed arguments and placed reliance

upon judgments in that regard, I shall deal the law on the subject (though

this issue really speaking need not be gone into, once it is seen that the

appointment was a backdoor appointment.)

12.2 The issue whether a teacher/employee who has been appointed

on temporary basis can claim protection of services, in that, whether he

can claim that though he is appointed on temporary basis, his

appointment is deemed to be on probation under the provisions of

section 5 of the MEPS Act has been considered by various judgments of

the Supreme Court as well as this Court including by a Full Bench.

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12.3 In Hindustan Education Society and Anr. vs. Sk.Kaleem

SK.Gulam Nabi and Ors. (1997) 5 SC 152, the Supreme Court has

considered section 5 of the MEPS Act. In paragraphs 4, 5 and 6, the

Supreme Court held as follows:

"4. Thus, it could be seen that the appointment of the first respondent was only a temporary appointment against a clear vacancy ... .

5. In view of the above and the order of appointment, the appointment of the respondent was purely temporary for a limited period. Obviously, the approval given by the competent authority was for that temporary appointment. As regards permanent appointments, they are regulated by sub- sections (1) and (2) of Section 5 of the Act according to which the Management shall, as soon as possible, fill up, in the manner prescribed, every permanent vacancy in a private school by appointment of a person duly qualified to fill in such vacancy. Every person of two years subject to the provisions of sub-section (4) and (5). He shall, on completion of the probation of period of two years, be confirmed.

i. Under these circumstances, the appointment of the respondent cannot be considered to be a permanent appointment. As a consequence, the direction issued by the High Court in the impugned judgment dated July 31, 1996 in writ petition No.5821/95 that he was regularly appointed is clearly illegal and cannot be sustained."

12.4 In Bharatiya Gramin Punanarrachana Sanstha vs. Vijay Kumar

& Others, (2002) 6 SCC 707, the Supreme Court while considering the

provisions of section 5 of the MEPS Act held that a plain reading of

section 5(2) would show that it applies to a person who is put on

probation consequent upon his appointment in a permanent vacancy.

The Supreme Court held that it is clear that under sub-section (2), only

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when an employee has completed successfully the probation period of

two years, he shall be deemed to have been confirmed. The Supreme

Court noted in that case that the order of appointment specifically

mentioned that after expiry of the period of two years the services of the

teacher would come to an end without any notice.

12.5 In a recent judgment in Pragati Mahila Samaj and anr. vs. Arun

s/o Laxman Zurmure and ors. (supra), the Supreme Court followed the

judgment in the case of Hindustan Education Society (supra).

12.6 In Ramkrishna Chauhan vs. Seth D.M. High School (supra), the

Full Bench of this Court has also dealt with the very issue involved in the

present Petition. The Full Bench was constituted by the Hon'ble the Chief

Justice upon a reference being made by a learned Single Judge in view

of the divergent opinions of different Benches of this Court. The Full

Bench of this Court in its judgment in paragraph 2 has reproduced the

question framed by the learned Single Judge which reads as follows:

"Would it be open to the School Tribunal to hold that an employee would be deemed to be on probation within the meaning of Section 5(2) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 on the ground that the appointment was made in a clear and permanent vacancy, notwithstanding the fact that the letter of appointment specifically stipulated that the appointment has been made in a temporary capacity?"

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The Full Bench answered the question in paragraph 28 which reads

thus:

"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."

In paragraph 18, the Full Bench has observed:

i.A priori, we have no hesitation in taking the view that neither section 5(1) nor 5(2) of the Act can be construed as forbidding the Management from making an appointment on contractual or temporary basis for a limited duration against a permanent vacancy until a suitable candidate is selected. Further, there is nothing in these provisions to indicate that every appointment made by the Management, in relation to a permanent vacancy, must be deemed to have been made on probation for a period of two years. There is no such legal fiction unlike in the case of a person appointed "on probation" for a period of two years, is deemed to have been confirmed, upon completion of that period. In other words, the parties would be bound by the terms and conditions stated in the letter of appointment, as there can be no presumption of appointment having been made "on probation" unless expressly stated in the appointment letter itself."

In arriving at its conclusion, the Full Bench observed that it was bound by

the exposition of the Apex Court in Hindustan Education Society and

followed the said decision and the decision in the case of Bharatiya

Gramin Sanstha.

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12.7 A learned Single Judge of this Court in the case of Mrs. Sneh

Kohli vs. The Universal English Trust and others (supra) followed the

decision of the Full Bench in Ramkrishna Chauhan. The learned Single

Judge after discussing law of precedents did not agree with the view of

another learned Single Judge (Nagpur Bench) in the case of Shamin

Azad Education Society, Giroli and others vs. Presiding Officer,

School Tribunal, Amravati and others (supra) and in the case of

Abdul Rafique Abdul Hamid vs. Yevatmal Islamia Anglo Urdu

Education Society and others (supra), wherein the learned Single

Judge (Nagpur Bench) discussed what was the ratio and what was not

the ratio in the judgment of the Full Bench. The learned Judge in Sneh

Kohli held that he was bound by the judgment of the Supreme Court in

the case of Hindustan Education Society (supra) and the Full Bench

judgment of this Court in Ramkrishna Chavan and not the judgment of

the learned Single Judge in Shamin Azad Education Society and

Abdul Rafique Abdul Hamid which took a different view. The learned

Single Judge observed that unless the Supreme Court takes a different

view or the Full Bench decision is overruled by the Supreme Court he is

unable to take a different view in the matter. It is noticed that the

judgment of the Supreme Court in the case of Pragati Mahila Samaj

(supra) and the judgment of the Division Bench of this Court in case of

Pramod Satuppa Oulkar Vs. The Kini Karyat Shikshan Mandal and

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ors. (LPA No.340 of 2007 decided on 22 August 2016), 2016 SCC

OnLine Bom 9421, were not cited before the learned Single Judge

which had also taken the same view.

12.8 In the aforementioned case of Pramod Satuppa Oulkar, the Di-

vision Bench of this Court, following the case of Ramkrishan Chauhan,

held in paragraph 16 as follows:

"16. The Full Bench of this Court in the case of Ramkrishna Chauhan (supra) has also clearly held that the terms and conditions of the letter of appointment are binding on the candidate and the Tribunal cannot presume that the appointment was made on probation. The contention of the learned counsel appearing on behalf of the appellant that section 3 read with section 5 is applicable is without any substance because the said section is in respect of appointment which is made on probation...".

12.9 In view of this exposition of law as discussed above, the Appellant

being a temporary employee appointed for a fixed period, is not entitled

to protection of his service.

13. It was sought to be argued before me that the present Writ Petition

is not maintainable as the Respondents Nos.2 and 4 to 8-trustees are

supporting the case of the Appellant and after the impugned order of the

School Tribunal was passed in Appeal, the Management in its meeting

held on 8 April 2001 has passed a Resolution that no Appeal or Writ

Petition would be filed against the order of the School Tribunal and the

Appellant would be allowed to resume duty and the order of the School

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Tribunal be forwarded to the Education Officer to implement the same

including that of back wages to be paid to the Appellant. It appears that

accordingly the Appellant joined the duty on 25 April 2001 and the Head

Master had communicated the same to the Education Officer vide his

letter dated 25 April 2001 and made request to grant approval and to

implement the order of the School Tribunal and the Education Officer

vide his letter dated 30 May 2002 had granted approval in favour of the

Appellant (which was later on withdrawn after filing of the present

Petition). It is pointed out that out of 11 members of the Managing

Committee, 7 members were present in the meeting held on 8 April

2001. It is submitted that the present Petition was filed as an afterthought

as late as on 31 July 2001 and therefore the Petition would not be

maintainable and the same is infructuous. It is however pertinent to note

that the aforesaid contentions were raised before the learned Single

Judge while admitting the present Petition (and before the Division

Bench in LPA as stated hereinafter). However, the learned Single Judge

of this Court granted interim relief and the operation of the impugned

order of the School Tribunal was stayed, which order was confirmed by

the Division Bench in LPA and the Review Petition against the order of

the Division Bench in LPA was also dismissed. The Appellant has thus

ceased to be in service at least since the passing of the interim order

dated 12-08-2002 by the learned Single Judge. In these circumstances,

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the plea of maintainability of the Petition on this ground would not be of

much significance at this stage.

14. Even otherwise, it is not in dispute that some of the Petitioners

who are trustees, were party-Respondents in the Appeal before the

School Tribunal. In my view, in the facts and circumstances of the

present case, where there is inter se dispute between trustees, the

contention that since the majority of the trustees in the Managing

Committee had resolved in the meeting not to challenge the impugned

order cannot be countenanced. In a case like a present one, where

illegalities are being pointed out, in that, the Management had made

illegal appointment of the Appellant as Assistant Teacher under pressure

and influence of the Respondent No.6, (as claimed before the School

Tribunal by majority of Trustees) who is Vice President and father of the

Appellant without following the prescribed procedure of advertisement

inviting applications, holding screening tests, interview etc. and despite

the fact that the Appellant was admittedly not qualified at the relevant

time to be appointed as Assistant Teacher, this Court would not turn a

blind eye to such illegality, merely because the Tribunal has overlooked

the illegalities in the impugned order and merely because some of the

Trustees have now taken a stand contrary to the stand taken before the

School Tribunal. It would not be appropriate to throw out the case of the

Petitioners, particularly at this stage of final hearing, on the ground of

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non-maintainability considering that the interim order is operating for last

more than one and half decade. Appointing a person by a backdoor

method and who is not qualified and is untrained would ultimately have

had an adverse effect on the students. Even assuming such resolution

not to challenge the impugned order of the School Tribunal was passed

by the majority of trustees, it would always be open for this Court to

entertain the Petition at the instance of the other trustees, who were

parties to the Appeal and who have brought forth the illegalities

committed by the Management, which the School Tribunal has

overlooked. In my view, the Court can lift the veil, if the facts and

circumstances of the case so require, particularly when due procedure is

not followed and appointments are made of persons who are untrained

and not duly qualified merely because they happen to be kith and kin of

the persons who control the management and affairs of the Trust. It is

required to be noted that the post in question was an aided post and it

was ultimately the public money which is involved. In view of the above

discussion, it is not necessary to go into the contention of the Petitioners

that the decision of the Managing Committee is ultimately required to be

approved by the Trust as per the Constitution of the Trust. It is also not

necessary to rule on the issue of the Appellant being a Commerce

graduate and not an Arts/Science graduate and inadequacy of workload

in the subject of Economics. In the facts and circumstances of the case,

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the other judgments cited by the learned Counsel for the Respondents

do not assist the case of the Respondents.

15. For all the aforesaid reason, the impugned order of the School

Tribunal cannot be sustained and deserves to be set aside. It is

accordingly set aside. Rule is made absolute in terms of prayer clause

(a). It is clarified that since the Appellant has obtained the requisite

qualification and had served the institution earlier, it is left open to the

Management to appoint the Appellant afresh, if so advised, on an

unaided post and the Education Officer shall consider the appointment of

the Appellant for approval on an unaided post sympathetically, if such

proposal is received by him.

                                                       (A.A.SAYED,J.)




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