Anjuman-E-Ittehad-O-Tarqqi ... vs Jabeen Bano Khwaja Miyan Inamdar & ...
2017 Latest Caselaw 7718 Bom

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                             CIVIL APPELALTE JURISDICTION

                   WRIT PETITION NO.7097 OF 2002
                                   ...
Anjuman-E-Ittehad-O-Tarqqi Trust
and anr.                                            ...Petitioners
       v/s.
Ms.Jabeen Bano Khwaja Miyan Inamdar
and ors.                                            ...Respondents
                                   ...
Mr.S.A.Sawant for the Petitioners.
Mr.Nitin Sopan Parkhe for the Respondent No.1
Mr.A.R.Metkari, AGP for the State.
                                   ...
                                 CORAM :     A.A. SAYED, J.
                                        DATED :      29 SEPTEMBER 2017
JUDGMENT:

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

Constitution is to the common judgment and order (in Appeals Nos.9 and 10

of 1998) dated 2 September 2002 passed by the School Tribunal, Pune

Region, Pune. By the impugned judgment and order the Appeals of the

Respondent No.1 and her colleague Ms.Gulnaz Bano Pathan respectively

under section 9 of the Maharashtra Employees of Private Schools

(Conditions of Service) Regulation Act, 1977 (`MEPS Act' for short) were

allowed and the otherwise termination of the Appellant (and Ms.Gulnaz

Bano Pathan) was set aside and the Petitioner-Management/School were

directed to reinstate the Respondent No.1 (and Ms.Gulnaz Bano Pathan) in

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service with backwages. The connected Writ Petition No.7092 of 2002 has

been filed by the Petitioner-Management challenging the very common

judgment and order in relation to the reliefs granted in favour of Ms.Gulnaz

Bano Pathan.

2. The case of the Respondent No.1 before the School Tribunal in her

Appeal No.9 of 1998 was as follows:

(i) She was initially appointed in the Primary School i.e. Anjuman

Primary School run by the Petitioner-Management on a temporary basis by

order dated 30-08-1985. She was reappointed on the same post for the

period from 02-12-1985 to 30-04-1986 by appointment order dated 29-11-

1985. Thereafter, again her services were extended without any break upto

7-10-1987. However, she was illegally terminated by letter dated 04-09-

1987 on the ground that she did not possess the necessary training

qualification of D.Ed. She therefore filed an Appeal being Appeal No.159 of

1987,which was allowed by the School Tribunal and the order of termination

dated 04-09-1987 was set aside and the Petitioner-Management was

directed to reinstate her in service with backwages. She was accordingly

reinstated as a primary teacher on 14-01-1988 (sic 09-02-1988). Thus, she

was in service of the School initially from 30-08-1985 till December 1987

without any break. She has been in continuous service of the School for

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more than 13 years. Since she was in service for more than 2 years on the

post of permanent vacancy, she was a permanent teacher. She was

teaching the students of 2nd standard on salary of Rs.150/- per month only.

(ii) The Secretary of the Petitioner-Management had assured her that

she will be allowed to complete her D.Ed. Course and then will be allowed

to sign the school muster only after getting the Government Educational

grant, which they were not getting due to her not possessing D.Ed.

qualification. She was therefore asked to wait for some time. Relying upon

the assurance given by the Petitioner-Management, she continued with her

job on negligible amount of salary despite her long service. After her

reinstatement as per the order of the School Tribunal, she had duly applied

in writing to the Petitioner-Management/Head Master for permission to

complete her D.Ed. course by letter dated 13-01-1988. However, she was

not permitted to complete her D.Ed. Course malafidely, despite forwarding

the Application form for reconsideration on 20-01-1988. Though she was

ready and willing to complete her D.Ed. course even on her cost, she was

illegally deprived from completing the said course only with a view to

terminate her services on the ground of her not possessing the training

qualification.

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(iii)           Despite the above, she was in continuous service of the School

since Agust 1985 till the end of January 1993. However, after February

1993 till December 1997, she was not allowed to sign the muster book

maintained by the School despite her attendance and rendering service.

On the contrary, the Petitioner-Management appointed another teacher

Mr.Kayyum on her post and she was asked to teach the students of 1 st and

2nd standards along with him. The then Secretary and the present Secretary

had assured and promised her that after receiving the education grant from

the Government, she will be allowed to complete her training course and to

sign the muster book. However, even after getting the Government

educational grant from 1995, the Petitioner-Management did not allow her

to sign the muster book and she was restrained from teaching the students

of the School from 28-12-1997.

(iv) Since she was otherwise terminated from service, she sent a legal

notice dated 29-2-1997 to the Petitioner-Management/Head Master for

reinstating her in service. She was appointed on a post of permanent

vacancy and she cannot be terminated without show cause notice and her

termination is illegal. On 14-2-1998, she was asked by the Petitioner-

Management not to approach the Court and informed that a decision will be

taken within one week. Therefore, she has not filed the Appeal immediately.

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However, after lapse of one week from 14-02-1998, she contacted the Head

Master on 24-02-1998, but the Petitioner-Management/Head Master

refused to reinstate her.

3. A Written Statement dated March, 1999 was filed on behalf of the

Petitioner-Management before the School Tribunal denying the contentions

in Appeal. Their case in the Written Statement was as follows:

(i) The Appeal was time barred and no application for condonation of

delay was filed. They are running primary and secondary schools viz.

Anjuman Primary School and Anjuman Secondary School and the

institution is a minority institution under Article 30(1) of the Constitution of

India. The Respondent No.1 was appointed on temporary basis by letter of

appointment dated 07-06-1984 for a period of 11 months. She was then

appointed on temporary basis during the academic year 1985-86. The

particulars of the employment of the Respondent No.1 with the School were

as follows:

           Sr.No.     From              To                 Nature of
                                                           appointment
           1.         31-08-85          01-05-86           Leave Vacancy
           2.         16-06-86          07-10-87           In service
           3.         08-10-87          08-02-88           Not in service
           4.         09-02-88          13-10-90           In service
           5.         05-11-90          04-12-90           Without pay
           6.         05-12-90          03-05-91           Continued


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           7.            29-01-92           01-03-93                Continued


(ii)            The Respondent No.1 was not in service in the school on and from

02-03-1993. She remained absent from duty from 03-06-1991 to 28-01-

1992 without pay and leave. The Respondent No.1 was temporary

employee as she was untrained teacher. She has not passed her D.Ed.

Examination. The Petitioner-Management had received grant-in-aid as

mentioned below:

Sr.No. Academic Year of grant in aid

It is not true that Respondent No.1 was teaching in the School till December

1997. They have not received any legal notice dated 29-2-1997 as alleged

by her. She was untrained and temporary employee in the School till 03-09-

1990. She has abandoned her temporary employment and ceased to be an

employee of the Petitioner-Management.

4. An Application for condonation of delay in filing the Appeal was

thereafter filed by the Respondent No.1, wherein she has stated - after her

reinstatement in the year 1988 till January 1993 she was serving in the

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School. However, from February 1993 till 28 December 1997 she was

allowed to teach 1st and 2nd standards students alongwith one other teacher

Mr.Kayyum, but was not allowed to sign the muster on the ground that they

are not getting educational grant. The Secretary of the Petitioner-

Management by letter dated 01-11-1994 had asked her to continue her

work as before and assured and promised her in writing that her services

will not be terminated on the ground of non-possessing necessary

qualification. Therefore, relying on the promise of the Petitioner-

Management, she regularly taught the students, but from 28-12-1997 she

was restrained from coming to the school and teach the children.

Therefore, she had addressed a letter dated 29-02-1997 through her

Advocate. On 14-01-1998, she had received a reply of the Petitioner-

Management and therefore she personally approached them. However, the

Petitioner-Management again asked her to wait for the decision of the

Managing Committee and she should not file any Appeal. Relying upon the

promise and request of the Petitioner-Management, she waited for the

decision. However, on 24-02-1998, when she was informed of their

decision not to reinstate her. She, therefore, filed the Appeal on 07-03-1998.

She has not filed the Appeal immediately after 28-07-1997 only because of

the assurance of the Petitioner-Management and therefore, the delay of 35

days in filing the Appeal was required to be condoned.

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5. A Reply to the Application for condonation of delay was filed by the

Petitioner-Management denying the contentions of the Respondent No.1. It

was stated in the Reply as follows- though the Appeal was filed as far back

as in March 1998, it is only when they submitted an Application praying for

framing an issue in respect of delay in filing the Appeal, that the

Respondent No.1 came out with an Application for condonation of delay

dated 9 March 2000 instead of filing the Application for condonation of delay

alongwith the memo of Appeal. The Appeal could not have been numbered

unless the delay was condoned. The Respondent No.1 was in their

employment for certain broken periods purely on temporary basis. She was

never in the employment after 01-03-1993 and the statement that she was

in continuous service till 28 December 1997 was a blatantly lie. The so-

called letter dated 01-11-1994 sought to be relied upon by her is not

admitted. However, assuming without admitting any such letter was

existing, then even in that case no such letter could be legal, proper and

authentic on behalf of the Petitioner-Management/School. The alleged

cause of action mentioned by the Respondent No.1 as 28 December 1997

is imaginary and therefore question of restraining her from continuing in the

employment does not arise. The letter dated 29-02-1997 by her Advocate

was duly replied by the Petitioner-Management.

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

order as stated in paragraph 1 hereinabove.

7. I have heard the learned Counsel for the Petitioner-Management, the

learned Counsel for the Respondent No.1.

8. Learned Counsel for the Petitioner-Management has relied upon the

following judgments:

(i) Shaikh Jamalchand v/s. Maharashtra Seva Sangh & ors.

2010 (5) Bom.C.R. 393;

(ii) Priyadarshini Education Trust v/s. Ratis (Rafia) Bano d/o

Abdul, 2007 (6) Mh.L.J. 667;

(iii) Bhartiya Adiwasi Shiv Shikshan Sanstha & ors. v/s. Premdip

Sahdeo Bodele and ors., 2010 (6) Mh.L.J. 461;

9. Learned Counsel for the Respondent No.1, on the other hand, has

relied upon the following judgments:

(i) Maulana Azad Educational Trust & ors. v/s. Uzama Khanam

Mirza Moin Ullah Baig & Anr., of the learned Single Judge,

Aurangabad Bench in Writ Petition No.8837 of 2015 (decided on

8-12-2015);

            (ii)   Shri   Ekveera    Devi   Sanskrutik   Mandal        v/s.     State      of

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                  Maharashtra, 2002 (3) Bom.C.R. 177;

(iii) Satish Balkrishna Mule v/s. Shri M.V.Chaskadbi, (1988) 90

Bom.L.R. 272;

(iv) Deepali Gundu Surwase v/s. Kranti Junior Adhyapak

Mahavidyalaya (D.Ed.), (2013) 9 SCR 1;

10. At the outset it is required to be noted that there was an earlier round

of litigation between the parties when the Respondent No.1 had challenged

her earlier termination order dated 04-09-1987 on the ground that she was

not duly qualified by filing Appeal No.139 of 1987. By a common judgment

and order dated 17-12-1987, the termination order dated 04-09-1987 was

set aside and the Petitioner-Management was was directed to reinstate the

Respondent No.1 (and Ms.Gulnaz Bano Pathan) in service with backwages

from the date of her termination. The Petitioner-Management, however,

chose not to challenge this judgment and order. The Respondent No.1 was

thereafter reinstated in service on 09-02-1988 by the Petitioner-

Management. Here, reference may be made to section 12 of the MEPS

Act. It reads as under:

"12. Decision of Tribunal to be final and binding:

Notwithstanding anything contained in any law or contract for the time being in force, the decision of the Tribunal on an appeal

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entertained and disposed of by it shall be final and binding on the employee and the Management: and no suit, appeal or other legal proceeding shall lie in any Court, or before any other Tribunal or authority, in respect of the matters decided by the Tribunal."

Thus, in view of section 12 of the MEPS Act reproduced above, it cannot be

disputed that the judgment and order dated 17-12-1987 of the School

Tribunal was binding upon the Petitioner-Management.

11. Though the Petitioner-Management have in their Written Statement

alleged that the Respondent No.1 was never in employment after

01-03-1993, this is clearly belied by the fact that by letter dated 01-11-1994

written by the Secretary of the Petitioner-Management. In the said letter it

was inter alia stated that she was reappointed from time to time after the

order of the School Tribunal and she was a permanent teacher and

considering her long service she will be allowed to appear and complete her

D.Ed. Course and that her services will not be terminated. It would be

apposite to reproduce the said letter dated 01-11-1994. It reads as follows:

"ANJUMAN-E-ITTEHAD-O TARAQQI TRUST

Correspondence Address Regd.Office

M.Shaikh 57, Temkar Streets, S.B.G.Street, (Telly Mohalla), 1st floor, Bombay- 400 008

Date: 1-11-1994

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BY HAND DELIVERY

To:

1. Miss Jabeen Bano Khwaja Miyan Inamdar, Junner Dist: Pune, Junnar

2. Miss Gulnazbano Dost Mohd. Khan, Sipoy Mohalla, Junnar, Dist: Pune

Madam,

I have pleasure to inform you that as decided by the Management you and Miss Gulnaz Bano are re-appointed from time to time after order of Education Tribunal and therefore decided to allow you to complete training qualification i.e. D.Ed. Course. I have to inform you that we could not allow you both to complete D.Ed. Training Course. However, I hereby assure you both considering your long service that we will allow you to appear for and complete your D.Ed. Training qualification course as you both are our permanent teachers.

Therefore continue your job as before. We will not terminate your services on ground of untrained Teachers or on ground of not possessing necessary qualification. The decision, if any changed will be informed in proper course.

Thanking you,

Yours faithfully, Sd/-

Secretary Anjuman-e-Ittehad-O Taraqqi Trust"

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Pertinently, in the Reply to the Application for condonation of delay of the

Respondent No.1, it is averred by the Petitioner-Management- `the said

letter dated 01-11-1994 is not admitted, however, even if such letter is

existing, the same was wrongly written by the Secretary without authority of

law'. Before this Court it is not disputed that such letter was infact written,

however, it is reiterated that the same was written without the authority of

the Management. The contention is rather curious and cannot be

countenanced and the said contention was rightly rejected by the School

Tribunal. The Petitioner-Management has evidently not come clean. In

these circumstances the discretion exercised by the School Tribunal in

condoning the delay in filing the Appeal of the Respondent No.1 accepting

that the cause of action had arisen on 28-12-1997 is not liable to be

interfered. Inasmuch as the Petitioner-Management has proceeded with the

hearing of the Appeal before the School Tribunal without insisting that the

Application for condonation of delay of the Respondent No.1 be decided

first, I am not inclined to accept their technical plea that the Application for

condonation of delay in filing the Appeal ought to have been filed and

decided earlier.

12. The contention that the School was a minority institution under Article

30(1) of the Constitution has not been urged before the School Tribunal. In

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any event no Certificate of the School being a minority institution has been

relied upon or produced. Hence, this contention is also rejected.

13. The Respondent No.1 has been in service of the School from the

year 1985. As indicated earlier, she was appointed on temporary basis from

time to time for about three years and thereafter her services were

terminated in September 1988 on the ground that she did not possess the

requisite qualification of D.Ed. degree. She had therefore to approach the

School Tribunal by filing an Appeal. She succeeded in the Appeal and her

termination was set aside and the Petitioner-Management was directed to

reinstate her (and her colleague Ms.Gulnaz Bano Pathan) with backwages

vide common judgment and order dated 17-12-1987. The record including

the letter dated 01-11-1994 bears out that the Petitioner-Management did

not allow the Respondent No.1 to complete the D.Ed. Course, which was a

requisite qualification for the Respondent No.1 to continue teaching in the

Primary School. In the said letter dated 01-11-1994 the Petitioner-

Management stated that the Respondent No.1 was a permanent teacher

and she would be allowed to complete her D.Ed. Course and that her

services will not be terminated. Notwithstanding the said letter and

assurances, her services were terminated. In my view, the conduct of the

Petitioner-Management clearly spells out that they have exploited the

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Respondent No.1.

14. Notwithstanding my above observations, it cannot be overlooked that

the Respondent No.1 does not possess the requisite qualification of D.Ed.

The judgment of the Division Bench of this Court in the case of Shaikh

Jamalchand (supra), which holds that a teacher who does not possess the

requisite qualification cannot claim protection of service and seek

reinstatement, supports the case of the Petitioner-Management. The

judgment in the case of Priyadarshini Education Trust (supra) on the

issue of backdoor entry would not come to the rescue of the Petitioner-

Management as in the present case the Respondent No.1 had in the earlier

round of litigation approached the School Tribunal which vide order dated

17-12-1987 directed reinstatement of the Respondent No.1 and the

Petitioner-Management had not challenged the said order dated 17-12-

1987.

15. It would be apposite to now refer to section 11 of the MEPS Act. It

reads as follows:

"11. Powers of Tribunal to give appropriate reliefs and directions. - (1) On receipt of an appeal, where the Tribunal, after giving reasonable opportunity to both parties of being heard, is satisfied that the appeal does not pertain to any of the

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matters specified in section 9 or is not maintainable by it, or there is no sufficient ground for interfering with the order of the Management it may dismiss the appeal.

(2) Where the Tribunal, after giving reasonable opportunity to both parties of being heard, decides in any appeal that the order of dismissal, removal, otherwise termination of service or reduction in rank was in contravention of any law (including any rules made under this Act), contract or conditions of service for the time being in force or was otherwise illegal or improper, the Tribunal may set aside the order of the Management, partially or wholly, and direct the Management,-

(a) to reinstate the employee on the same post or on a lower post as it may specify;

(b) to restore the employee to the rank which he held before reduction or to any lower rank as it may specify;

(c) to give arrears of emoluments to the employee for such period as it may specify;

(d) to award such lesser punishment as it may specify in lieu of dismissal, removal, otherwise termination of service or reduction in rank, as the case may be;

(e) where it is decided not to reinstate the employee or in any other appropriate case, to give to the employee twelve months' salary (pay and allowances, if any) if he has been in the service of the school for ten years or more and six months' salary (pay and

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allowances, if any) if he has been in service of the school for less than ten years, by way of compensation, regard being had to loss of employment and possibility of getting or not getting suitable employment thereafter, as it may specify; or

(f) to give such other relief to the employee and to observe such other conditions as it may specify, having regard to the circumstances of the case.

            (3)    ...

           (4)     ..."

16. In my view considering the fact that the Respondent No.1 did not hold

the requisite qualification of D.Ed., it would not be appropriate to reinstate

her in service. It is noticed that this Court had, after filing of the Petition,

stayed the operation of the impugned order of the School Tribunal and the

Respondent No.1 is not in service for the last about 15 years. Considering

the facts and circumstances of the case and since the Respondent No.1

was terminated despite there being an order of the School Tribunal in her

favour and since the Respondent No.1 was admittedly not holding the

requisite qualification of D.Ed., in my view, interest of justice would be

served if the Petitioner-Management are directed to pay to the Respondent

No.1 six months salary (present scale) as compensation in lieu of

reinstatement as contemplated under the provisions of section 11(2)(e) & (f)

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quoted above.

17. In light of the above discussion, I pass the following order:

ORDER

i) The Petitioner-Management is directed to pay the Respondent

No.1 six months' salary (gross salary at present scale payable to

Primary Teacher in Government aided Primary School) within a

period of eight weeks from today as compensation in lieu of

reinstatement. It is clarified that there shall be no deduction on

the said amount and it would be net of Tax.

ii) The impugned order of the School Tribunal shall stand modified

accordingly.

iii) Rule is made partly absolute in the aforesaid terms.

18. The Petition is disposed of accordingly. There shall be no order as to

cost.

                                                                     (A.A.SAYED, J.)




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