Prakash Babarao Shingane vs Janta Education Society, Chusala ...
2021 Latest Caselaw 11776 Bom

                                                    1              211-LPA-352-10.odt

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     NAGPUR BENCH, NAGPUR

                LETTERS PATENT APPEAL NO. 352 OF 2010
                                 IN
                    WRIT PETITION NO. 891 OF 2006

 Prakash Babarao Shingane,
 Aged about 52 years,
 Occupation - Nil,
 R/o Chincholi Shingana,
 Tq. Anjangaon Surji,
 Distt. Amravati.                                            ... APPELLANT

                               VERSUS

 1. Janta Education Society,
    Chausala, Tq. Anjangaon Surji,
    Distt. Amravati, through its
    President.

 2. The Headmaster,
    Smt. Shewantbai Kalmegh
    Junior College, Chausala,
    Tq. Anjangaon Surji,
    Distt. Amravati.

 3. The Deputy Director of Education,
      Amravati Division, Amravati,
      Tq. Distt. Amravati.                                    ... RESPONDENTS
 -------------------------------------------------------------------------------------------
 Shri P. A. Kadu, Advocate for appellant.
 Shri R. J. Mirza, Advocate for respondent Nos.1 and 2.
 Ms. S. S. Jachak, Assistant Government Pleader for respondent
 No.3.
 -------------------------------------------------------------------------------------------
                      CORAM: A.S. CHANDURKAR AND G. A. SANAP, JJ.

ARGUMENTS WERE HEARD ON : 11/08/2021 JUDGMENT IS PRONOUNCED ON : 25/08/2021

JUDGMENT : (PER : G. A. SANAP, J.)

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1. In this Letters Patent Appeal, challenge is to the

Judgment and order dated 04/11/2009 passed by the learned

Single Judge in Writ Petition No.891/2006, whereby the learned

Single Judge allowed the writ petition and quashed and set aside

the order passed by the Presiding Officer of School Tribunal,

Amravati dated 11/10/2005. The Presiding Officer of School

Tribunal, Amravati by the said order dated 11/10/2005 had

allowed the appeal filed by the appellant and directed his

reinstatement in service with back-wages.

The facts leading to the filing of this Letters Patent

Appeal are as follows :-

2. The respondent No.1 is a registered society and

registered Public Trust. It runs Smt. Shewantabai Kalmegh High

School and Junior College at Chausala, Tq. Anjangaon Surji, Dist.

Amravati. It is the case of the appellant that at the time of his first

appointment on 02/08/1985 on fixed salary of Rs.250/- per

month for a period up to 30/06/1986, he was possessing the

qualification of M. Com. B.P.Ed. The Director of Education

approved his appointment on pay scale of Rs.250/- - Rs.450/- for

Academic Session 1985-1986 for the subjects of Commerce and

3 211-LPA-352-10.odt

Physical Education. As per the order dated 28/06/1986, the said

appointment was continued for a period from 01/07/1986 to

08/05/1987 on a fixed pay of Rs.500/- per month. The Deputy

Director of Education granted approval to this appointment on

23/02/1987. It is the case of the appellant that he was appointed

vide order dated 09/07/1987 on clock hour basis for the period

from 09/07/1987 to 24/03/1988. The Deputy Director of

Education vide order dated 17/10/1988 granted approval to this

appointment from 09/07/1987 till the end of Academic Session

1987-1988. The appellant has made a grievance that this order

was fabricated because in fact, he was appointed from

09/07/1987 to 24/03/1988 in a clear vacancy.

3. It is further stated that later on, the respondent

No.1 by following due procedure appointed the appellant as

Lecturer on probation of two years by order dated 18/08/1988.

He continued to serve till his oral termination on 26/06/1991. It is

his case that on the date of his termination, he had acquired the

status of deemed confirmed employee under the provisions of

Section 5 (2) of the Maharashtra Employees of Private Schools

(Conditions of Service) Regulation Act, 1977 (Hereinafter referred

to as "the M.E.P.S. Act").

4 211-LPA-352-10.odt

4. It is the further case of the appellant that one Shri

G.S. Khule had challenged his termination by filing an appeal

before the School Tribunal. The services of Shri Khule were

terminated for want of approval by the Director of Education. The

appellant was not appointed on the post held by Shri Khule. It is

stated that in the said appeal the management of the respondent

No.1 took a stand that as per the order of Deputy Director of

Education to promote one Shri Yawle, the services of Shri Khule

were terminated. The School Tribunal had granted stay to the

termination of Shri Khule. Similarly, the respondent No.1 in Shri

Khule's appeal admitted that the appellant was appointed on

probation period of two years and on completion of probationary

period of two years satisfactorily, acquired the status of deemed

confirmed employee. However, in the meantime, the management

was changed on 16/06/1991. The new management arbitrarily

and illegally, orally terminated the services of the appellant

contrary to the provisions of law. According to the appellant, in

the appeal filed by Shri Khule bearing No.144/1988, he was

allowed to intervene in the said appeal. Appeal filed by Shri Khule

was allowed. The appellant had challenged the said Judgment by

filing a Writ Petition No.893/1993 and it was disposed of by this

5 211-LPA-352-10.odt

Court on 23/02/2005 with a liberty to the appellant to approach

the School Tribunal within a period of one month to challenge his

termination dated 26/06/1991. The appellant, therefore,

challenged his termination contending that he was appointed on a

permanent vacancy and after completion of two years service, he

acquired the status of deemed confirmed employee.

5. The respondent Nos.1 and 2 opposed the claim of

the appellant. They denied the material facts pleaded by the

appellant. They denied that the appellant was appointed on

probation of two years. It is contended that respondent No.3

rightly refused the approval for the appointment of the appellant

because the reinstatement of Shri Khule was allowed as per the

order passed in Appeal No.144/1988 by the School Tribunal.

According to the respondents, there was a Commerce and Arts

College attached to High School since the academic year 1984-

1985. However, the said Commerce Faculty was closed in the year

1992-1993 on account of inadequate strength of the students. In

the said year, there was no admission in 11 th Std. and therefore, it

was closed in the year 1993 and 12 th Std. was closed in the year

1993-1994. The Deputy Director had specifically informed the

respondent Nos.1 and 2 vide letter dated 16/08/1991 that the

6 211-LPA-352-10.odt

teachers appointed in the last academic year should not be

continued. It is, therefore, contended that on account of this, the

temporary services of the appellant were terminated w.e.f.

26/06/1991. The termination according to them is legal and

proper. The learned Presiding Officer of the School Tribunal

decided the appeal in favour of the appellant and held his

termination dated 26/06/1991 illegal and directed his

reinstatement.

6. Being aggrieved by the said order, the respondent

Nos.1 and 2 had filed writ petition in this Court. Learned Single

Judge as stated aforesaid, vide order dated 04/11/2009, allowed

the writ petition and set aside the order passed by the School

Tribunal.

7. Being aggrieved by the order passed by the learned

Single Judge, the appellant has come before this Court by filing

this Letters Patent Appeal. The grounds of challenge to the

impugned order have been set out in the Memo of Appeal. The

main ground is that the learned Single Judge has not properly

appreciated the evidence and came to a wrong conclusion that the

appointment of the appellant was illegal and invalid. It is also

7 211-LPA-352-10.odt

contended that the material evidence placed on record has not

been taken into consideration and as such, the same has resulted

in causing injustice to the appellant.

8. We have heard learned advocate for the appellant,

learned advocate for the respondent Nos.1 and 2 and the learned

Assistant Government Pleader for respondent No.3. We have gone

through the record and proceedings.

9. Learned advocate for the appellant submitted that

the appellant was appointed vide order dated 18/08/1988 by

following procedure and strictly in compliance with the provisions

of law. Learned advocated submitted that various clauses of the

appointment order and particularly, Clause (2) would prove

beyond doubt that the appellant was appointed for a period of two

years in a clear vacancy. Learned advocate submitted that the

application made by him on 10/08/1988 for the appointment was

processed by following procedure and on being satisfied with the

fundamental requirements, he was given the appointment.

Learned advocate submitted that the allegations made by the

respondent No.1 that appointment order was issued by the then

President without approval of the School Committee, cannot be

8 211-LPA-352-10.odt

accepted because in para 9 of the reply affidavit dated

15/02/1991 to the application made by the appellant to intervene

in the Appeal No.144/1988 before the School Tribunal, Amravati,

the respondent Nos.1 and 2 have categorically admitted that the

appointment of the appellant was against the permanent post and

in a clear vacancy. Learned advocate submitted that there is no

iota of evidence either to rebut this statement or to discard this

statement. Learned advocate, therefore, submitted that the stand

taken by the respondent Nos.1 and 2 in this proceeding that the

appointment was purely on temporarily basis, cannot be

sustained. Learned advocate submitted that in the appointment

order, specific reference of the application made by the appellant

for appointment has been made and the same therefore, clearly

indicates that the appointment order was issued by following

procedure. Learned advocate submitted that there is either no

pleading or the pleading on record is too vague on the point that

the appointment of the appellant had no approval of the School

Committee. Learned advocate pointed out that the appointment

order dated 18/08/1988 bears signature of the Secretary of the

School Committee and the seal of the school. Learned advocate

submitted that despite having ample evidence on record and the

9 211-LPA-352-10.odt

said evidence being placed before the Deputy Director of

Education, Amravati, he refused the approval on unsustainable

grounds. Learned advocate submitted that the changed

management of the respondent No.1 - School on or about

16/06/1991 had dispute with the erstwhile President and

therefore, the appellant has been made a scapegoat of their

rivalry. Learned advocate submitted that the learned Single Judge

has not taken the entire evidence into consideration and reversed

the well reasoned order passed by the learned Presiding Officer of

the School Tribunal. Learned advocate therefore, submitted that

the appeal deserves to be allowed in terms of the prayers.

10. Learned advocate for the appellant in order to

substantiate his submissions, has relied upon the following

reported decisions :-

i] (2010) 3 Supreme Court Cases 637 (Krishan Singh Vs. Executive Engineer, Haryana State Agricultural Marketing Board, Rohtak (Haryana).

ii] 2014 (4) Mh.L.J. 723 (Shamin Azad Education Society, Giroli and others Vrs. Presiding Officer, School Tribunal, Amravati and others) iii] 2003 (4) Mh.L.J. 866 (Anil Dattatraya Ade Vrs. Presiding Officer, School Tribunal, Amravati and others).

                                          10            211-LPA-352-10.odt

        iv]    2006 (2) Mh.L.J. 530
               (Ramchandar Ramadhar Yadav Vrs. Hyderabad

(Sind) National Collegiate Board and another).

v] 2017(1) Mh.L.J. 90 (Trimurti Balak Mandir Shikshan Sanstha, Aurangabad and another Vrs. Vithabai Bhikan Desale and others).

vi] 2016(6) Mh.L.J. 933 (Anil s/o Govindrao Korde Vrs. Siddheshwar Krida Mandal, Sillod and others).

vii] 2013(2) Mh.L.J. 713 (Ramkrishna Chauhan Vrs. Seth D.M. High School and others).

11. Learned advocate for the respondent Nos.1 and 2

submitted that on appreciation and analysis of the evidence placed

on record, in threadbare manner, learned Single Judge could

notice the mischief played by the then President of the respondent

No.1. Learned advocate submitted that the appointment was

protegy of the then President and therefore, in order to favour him

by sweeping the provisions of law and rules under carpet, the then

President without approval of the School Committee and without

following the procedure, appointed the appellant. Learned

advocate submitted that the appellant was not appointed in a clear

vacancy. Learned advocate submitted that the learned Single

Judge has considered the documentary evidence placed on record

in this regard. Learned advocate submitted that the finding of fact

11 211-LPA-352-10.odt

arrived at by the learned Single Judge is the only possible

conclusion one can arrive at on the basis of this evidence. Learned

advocate submitted that the appointment order dated 18/08/1988

cannot be read in isolation with the other evidence on record.

Learned advocate submitted that there was no question of oral

termination of the services of the appellant inasmuch as his

appointment was on a temporary post and that too for a limited

period and as such, without further extension, it had come to an

end. Learned advocate submitted that the appointment of the

appellant was made by the then President in gross violation of the

provisions of Section 5 of the Maharashtra Employees of Private

Schools (Conditions of Service) Regulation Act, 1977 (for short,

"the MEPS Act") and Rule 9 of the Maharashtra Employees of

Private Schools (Conditions of Service) Regulation Rules, 1981

(for short, "the MEPS Rules"). Learned advocate submitted that

there was no advertisement, there was no open selection, the

procedure required to be followed for filling up the vacancy in

public employment was not at all followed and therefore, the so

called appointment of the appellant was void ab initio since

inception. Learned advocate submitted that the Deputy Director of

Education, Amravati made it clear that the approval could not be

12 211-LPA-352-10.odt

granted because the appellant was appointed on clock hour basis

and without considering the backlog of the reserved category

candidates. Learned advocate submitted that the Director of

Education, Amravati granted approval on year to year basis and

with specific stipulation that it was for temporary period and on

clock hour basis. Learned advocate submitted that the then

President without taking the School Committee and other

members of the management into confidence, issued the order in

tearing hurry. Learned advocate submitted that the reliance placed

on reply filed by the then management to the intervention

application made by the appellant in Appeal No.144/1988 cannot

be given much weightage because the same was filed under the

instructions of the then President, who had blessed the appellant.

Learned advocate submitted that the facts stated in the said

affidavit cannot be made the basis to accept the claim of the

appellant without taking the other cogent and concrete

documentary evidence into consideration. Learned advocate

submitted that the Court if comes to the conclusion that the order

dated 18/08/1988 is illegal and void ab initio, then the material

sought to be relied upon to buttress the claim made by the

appellant, needs no consideration.

13 211-LPA-352-10.odt

12. Learned advocate for respondent Nos.1 and 2

submitted that the well reasoned Judgment of the learned Single

Judge does not warrant interference inasmuch as the learned

Single Judge has arrived at just conclusion on the basis of

painstaking exercise of threadbare analysis and appreciation of the

evidence. The learned advocate for respondent Nos.1 and 2 placed

reliance on the unreported decision of Supreme Court in the case

of Union of India and another Vrs. Raghuwar Pal Singh in Civil

Appeal No.1636/2012 dated 13/03/2018.

13. In this appeal, Section 5 of the M.E.P.S. Act needs

to be considered and applied in the backdrop of the disputed facts

and the evidence placed on record by the parties in support of

rival contentions. Same would be the position vis-a-vis Rule 9 of

the M.E.P.S.Act. Section 5 speaks about the obligation of the

management of the Private Schools. Sub-section (1) provides for

filling in the permanent vacancy by appointment of a person duly

qualified to fill such vacancy. Rule 9 of the M.E.P.S. Rules provides

the procedure for the appointment of the teaching and non -

teaching staff. Sub-rule (2A) provides that the management shall

advertise the vacancies in the manner provided therein and also

notify the vacancies to the Employment Exchange Center of the

14 211-LPA-352-10.odt

District and District Social Welfare Officer. Sub-rule (7) provides

for filling in vacancies reserved for backward classes. Sub-rule (9)

provides that the post reserved for the backward classes as

provided under Sub-rule(7) and Clause (a) of Sub-rule (10) shall

not be filled in by the candidates belonging to the other castes,

tribes, categories or classes, than, castes, tribes, categories of caste

for which the posts are reserved. In our opinion, in the

background of the tooth and nail fight between the appellant and

the respondent Nos.1 and 2, it would be necessary to examine the

material placed on record and to see whether the appointment of

the appellant was made strictly in compliance with the mandate of

law, as noted above.

14. It would be necessary to consider and analyze the

documentary evidence relied upon by the parties to substantiate

their rival contentions. In our opinion, if the documentary

evidence indicates that the appointment of the appellant was not

made strictly in compliance with the above provisions, then in that

event, the facts stated in the affidavit filed by the erstwhile

management in Appeal No.144/1988 would have to be ignored

from consideration. The disputed appointment order is dated

18/08/1988. It is undisputed that before the order dated

15 211-LPA-352-10.odt

18/08/1988, there were 3 orders issued to the appellant. It is

pertinent to note that though these 3 orders are not bone of

contention in this appeal, in our opinion, in order to appreciate

rival contentions of the parties and to arrive at a just and

reasonable conclusion, it would be necessary to refer to those

orders. The first order of the appointment of the appellant is dated

02/08/1985. It was a temporary appointment for a period of one

year from 02/08/1985 to 30/06/1986. This order was signed by

the President and countersigned by the Principal. The Deputy

Director granted approval to this appointment vide order dated

17/09/1985 for the Academic Session 1985-1986. At that time,

the appellant was M. Com. B.P.Ed. and approval was granted for

Commerce subject. The second appointment order is dated

28/06/1986. It was a temporary appointment from 01/07/1986 to

08/05/1987. It was approved by the President and signed by the

Principal. The order of approval is dated 23/02/1987. The Deputy

Director while granting approval made it clear that the approval

was granted for the Academic Session 1986-1987 only because

there was a backlog. The third order is dated 09/07/1987. It was

from 09/07/1987 to 24/03/1988. It is the last order before the

order which is subject matter of dispute in this appeal. The

16 211-LPA-352-10.odt

approval was granted on 17/10/1988. Perusal of the approval

would show that this appointment was on clock hour basis for

teaching the subject of Organization of Commerce. The

qualification of the appellant mentioned in this order was M.Com.

B.P.Ed. The appointment was for academic session 1987-1988. It

is therefore, seen that till the last order, there was no permanent

vacancy. The appellant was appointed temporarily on clock hour

basis.

15. It would now be necessary to see how the

circumstances have changed warranting the issuance of the order

in question dated 18/08/1988. At this stage, it is necessary to

mention that the contents and clauses of three orders mentioned

above and the order dated 18/08/1988 are identical. It is

necessary to mention that particularly Clause No.2, except the

period, is identical and without any change. It can be seen on

perusal of the Annexure-IX at page 100 of the appeal that on

issuance of the appointment order dated 18/08/1988, a request

was made by the management of the respondent No.1 to combine

the load of common subjects and physical training subjects so as to

extend the benefit of the appointment to the appellant. Annexure-

17 211-LPA-352-10.odt

IX is the letter dated 22/11/1988 issued by the Deputy Director of

Education, Amravati to the management of the respondent No.1 -

School. In this letter, the Deputy Director clearly stated that the

prayer made in this letter, cannot be taken into consideration. It

was reiterated that the approval earlier granted on clock hour

basis was as per the rules and therefore, request made for

combining the subjects was not allowed. There is documentary

evidence on record received from the office of Deputy Director of

Education, Amravati subsequent to the issuance of the order dated

18/08/1988. Annexure-IX is the order of granting approval to the

teachers for the Academic Session 1989-1990. A note is appended

to this order. In this note, it was categorically stated that the

backlog of the reserved posts must be filled in on priority basis.

This note, therefore, clearly indicates that there was backlog of the

reserved category posts. There is Annexure to this order, wherein

the name of the appellant has been mentioned. It shows that the

approval was refused on the ground that the earlier approval was

contrary to the rules and therefore, the further approval could not

be granted. There is one more order dated 26/09/1990. It is

marked as Annexure-XI. It pertains to the grant of approval to the

teachers of respondent No.1 - School for the Academic Session

18 211-LPA-352-10.odt

1990-1991. A note is also appended to this order under the

signature of the Deputy Director. In this note, Deputy Director has

reiterated that the backlog must be first completed by following

due procedure. There is Annexure to this order. The name of the

appellant has been mentioned therein. The reason for denying

approval has been mentioned. Two reasons have been cited. It is

stated that despite the stay by the School Tribunal, the continuous

appointments were given to the appellant. The second important

objection is that in the institution of respondent No.1, there was

backlog and therefore, the approval could not be granted. In our

opinion, in the backdrop of the aforesaid documentary evidence,

the submissions advanced by the learned advocates for the

appellant and the respondents touching the appointment letter

dated 18/08/1988 needs consideration.

16. One of the contentions raised by the respondent

Nos.1 and 2 was that for the appointment in a clear vacancy, the

appellant did not possess B.Ed. qualification. The learned Single

Judge considered this aspect and concluded that since the

appointment of the appellant was invalid, this aspect does not

require consideration being insignificant. In the facts and

circumstance of the case, we endorse this view taken by the

19 211-LPA-352-10.odt

learned Single Judge. We have minutely perused the record and

proceedings. It is seen on perusal of the appointment order dated

18/08/1988 that it was signed by the then President of the

respondent No.1. It was not signed by the Principal or the

Secretary of the School Committee. There is no evidence on record

to show that the School Committee considered the application of

the appellant with others for the appointment to the post and then

took the decision for his appointment. It is pertinent to note that

before the appointment of the appellant, there was another

untrained teacher Shri S.G. Khule, who had been appointed for

teaching Commerce and Physical Education. It has come on record

that the then President terminated the services of Shri Khule on

24/03/1988 and appointed the appellant being his protege. It is

seen on perusal of the documentary evidence on record that the

application made by the appellant was processed by the President

in tearing hurry. The endorsement on the application would show

that the appellant was interviewed by the President and then, he

issued the order of appointment. The appointment was issued

without following due process and procedure in tearing hurry.

This clearly indicates that School Committee and the Principal

were kept in dark. There is no iota of evidence to show that the

20 211-LPA-352-10.odt

appellant was considered along with other applicants and

thereafter, he was selected by the School Committee. There is also

no evidence to show that the order was issued by the Headmaster

or the Secretary with the prior approval to the appointment of the

appellant by the School Committee.

17. Learned advocate for the appellant on the basis of

Clause (2) of the appointment order submitted that this

appointment was for a period of two years and therefore, on

completion of the period of probation by a legal fiction, the

appellant was confirmed in the job. We have already noted down

the initial three orders. In order to appreciate the submissions

advanced by the learned advocate for the appellant, we have

compared the order dated 18/08/1988 with those three orders.

On comparison, we noticed that the contents of all the four orders

are identical. The clauses of the four orders are identical. In those

three orders also, there was mention that the appellant was

appointed on probation for a period of two years. It is true that in

this order, there is reference of the application dated 10/08/1988

made by the appellant. Perusal of this application, further fortifies

the doubt that within 8 days from the application, the

appointment order was issued by the then President. The

21 211-LPA-352-10.odt

application is marked as Annexure-R-V at page 175. The

endorsements on this application were made by the President.

There is no single endorsement on this application either by the

School Committee or the Secretary or the Principal of the

respondent No.1 - Society. It is, therefore, seen that the then

President bypassing School Committee and in flagrant violation of

the mandate of Section 5 of the M.E.P.S. Act and Rule 9 of the

M.E.P.S. Rules issued the appointment order. It is pertinent to

note that even in order dated 18/08/1988, it has been

categorically mentioned that this appointment was temporary.

Perusal of the Clause (2) would show that the period of temporary

appointment was not mentioned. In the earlier three orders, the

period of appointment was mentioned. The endorsement at the

bottom on the left side of the order would show that the

appointment was approved by the President. There is no mention

or reference of the approval to the appointment by the School

Committee, the Secretary of the School Committee or the

Principal. The order was signed by the President. However, simply

because of signature of the Principal on this order, it cannot be

inferred that required procedure and compliance of law had gone

into before granting approval to the appointment. This

22 211-LPA-352-10.odt

appointment order, if read in juxtaposition with the earlier three

orders of appointment and the fact that the mandatory procedure

required under Section 5 of the M.E.P.S. Act and Rule 9 of the

M.E.P.S. Rules was not followed and adhered to, has to be held as

illegal appointment order. The statement made in the affidavit in

reply filed by erstwhile management admitting that his

appointment was in a clear permanent vacancy, therefore, cannot

be accepted as a gospel truth and based on this statement, legal

sanctity cannot be accorded to the appointment order, which is

prima facie illegal.

18. Learned Single Judge has elaborately dealt with the

submissions on the point of so called retrenchment of the

appellant. It has come on record that during this period from

1987-1999, the strength of the students in Commerce faculty of

the respondent No.1 was dwindling. It is seen that considering the

dwindling and insufficient strength of the students, the clock hour

basis appointments were issued. It has come on record that for

want of students in the year 1993-1994, the Commerce faculty has

been closed. Learned Single Judge has considered the provisions

of Rule 26 of the M.E.P.S. Rules. Learned Judge has observed that

since the termination of the appellant w.e.f. 26/06/1991 was

23 211-LPA-352-10.odt

found valid and therefore, there was no question of retrenchment

of the appellant on account of closure of the school in the year

1993-1994. In our opinion, learned Single Judge has not

committed any mistake. The finding of the learned Single Judge

that in view of the termination of the appellant from 26/06/1991

on the ground of invalidity, the question of resorting to the

provisions of Rule 26 of the M.E.P.S. Rules would not arise is

based on proper appreciation of evidence and law. Learned Single

Judge has considered the decisions relied upon by the parties and

on doing so, allowed the writ petition. In view of the facts and

circumstance and evidence, we conclude that on the date of

appointment of the appellant by the then President, there was no

clear vacancy against which the respondent No.1 could have been

absorbed. The evidence clearly indicates that approval was refused

for want of workload and backlog. This fact would, therefore,

indicate that there was no clear vacancy and as such, respondent

No.1 could not have been appointed. It is, therefore, apparent that

there would be no warrant to fictionally hold that the appellant

was entitled to appointment on probation on 18/08/1988. We

have already observed that the appointment was not made by

following mandatory law and procedure. It was made by the then

24 211-LPA-352-10.odt

President of the Society. The evidence on proper appreciation

does not permit us to accept the case of the appellant. We hold

that the appointment of the appellant was illegal and invalid. As

the appointment is found to be invalid and illegal from the very

inception, the appellant would not be entitled to the relief as

sought for. Even if it is assumed for the sake of argument that the

contents and the clauses of order dated 18/08/1988 satisfy the

basic requirements of the format of the order, etc., in our view,

the same cannot be held to be legal inasmuch as the foundation

from which the order flows is itself illegal.

The applicability of the law laid down in the

reported decisions relied upon by the learned advocate for the

appellant and the learned advocate for the respondent Nos.1 and

2 needs to be considered in the backdrop of the finding of fact

arrived at by us. First, we propose to consider the decisions relied

upon by the learned advocate for the appellant.

i] In the case of Krishan Singh Vs. Executive Engineer, Haryana State Agricultural Marketing Board, Rohtak (Haryana), reported in (2010) 3 Supreme Court Cases 637, it is held that in the absence of specific stand in the reply filed by the employer that the post in which workman was working, was not sanctioned or his engagement was contrary to the

25 211-LPA-352-10.odt

statutory rules or that he was employed elsewhere or there was no vacancy, cannot be considered. In the case before us on the basis of material facts pleaded by the parties, it has been proved that the appointment was contrary to the provisions of Section 5 of the M.E.P.S. Act and Rule 9 of the M.E.P.S. Rules. There is pleading of the material fact in the reply filed before the School Tribunal.

ii] In the case of Shamin Azad Education Society, Giroli and others Vrs. Presiding Officer, School Tribunal, Amravati and others, reported in 2014 (4) Mh.L.J. 723, it is held that the burden to prove is on the employee who come before the School Tribunal with a definite case that he was selected and appointed to fill in the permanent vacancy. If the management denies his contention then the burden is on the management to prove that the appointment was on temporary basis. In the case before the learned Single Judge, the employee was appointed strictly by following the provisions of Section 5 of the M.E.P.S. Act and Rule 9 of the M.E.P.S. Rules. There was advertisement, interview and selection by the Selection Committee for the appointment to the post. In the case on hand before us, there was no advertisement, no interview and no selection by the Selection Committee. The appointment was made by the President without authority. The appointment letter dated 18/08/1988

26 211-LPA-352-10.odt

clearly states that the appointment was on temporary basis.

iii] In the case of Anil Dattatraya Ade Vrs. Presiding Officer, School Tribunal, Amravati and others, reported in 2003 (4) Mh.L.J. 866, the Division Bench of this Court has held that the employee gets automatic confirmation after expiry of two years probation period. It is held that the employee, who is appointed in permanent vacancy on probation acquires the status of permanency on completion of two years automatically without any specific confirmation order passed by the employer. The Division Bench of this Court in this case found that the employee therein was appointed for a period of two years on probation by following procedure laid down in Section 5 of the M.E.P.S. Act and Rule 9 of the M.E.P.S. Rules. In the case before us, the appellant was appointed on temporary basis. His appointment was not strictly in compliance with the provisions of Section 5 of the M.E.P.S. Act and Rule 9 of the M.E.P.S. Rules. The Deputy Director of Education did not continue his appointment because he found that there was backlog and due to the insufficient strength of the students and his appointment was made on clock hour basis. The Deputy Director of Education did not allow the combination of two Sections dealing with two different subjects as prayed for by the then President for granting approval to the appointment of the appellant.

                                               27                211-LPA-352-10.odt

         iv]    In the case of Ramchandar Ramadhar Yadav Vrs.

Hyderabad (Sind) National Collegiate Board and another, reported in 2006 (2) Mh.L.J. 530, the employee was appointed against clear permanent vacancy of 'Peon' and not for a fixed period. It is held that mere use of the word 'temporary' in the appointment order would not make the appointment temporary. In this case before the learned Single Judge, the employee was appointed against the permanent vacancy. There was no issue of backlog of the backward class candidates as well as non- compliance of Section 5 of the M.E.P.S. Act and Rule 9 of the M.E.P.S. Rules. The appointment was not made for a fixed period.

v] In the case of Trimurti Balak Mandir Shikshan Sanstha, Aurangabad and another Vrs. Vithabai Bhikan Desale and others, reported in 2017(1) Mh.L.J. 90, there was oral termination of the teacher, who had worked for more than 5 years. The appointment order was issued under Rule 9 (5) of the M.E.P.S. Rules and that too in a prescribed form under Schedule D of 1981 Rules. The appointment order was neither withdrawn nor it was mentioned that it was issued by incompetent authority. In the case before us, the appointment was not made by the competent authority. The President of the society had no authority to appoint the appellant. The appointment of the appellant was clothed with the legal flaws.

                                                 28           211-LPA-352-10.odt

         vi]    In the case of Anil s/o Govindrao Korde Vrs.

Siddheshwar Krida Mandal, Sillod and others, reported in 2016(6) Mh.L.J. 933, the management had raised the issue of unlawful nature of the appointment after 10 years from the date of appointment. The Education Officer had granted approval holding that the appointment was legal. The facts of the case of the appellant are totally different. His appointment was illegal since very inception.

vii] In the case of Ramkrishna Chauhan Vrs. Seth D.M. High School and others, reported in 2013(2) Mh.L.J. 713, learned advocate for the appellant has relied upon the observations made in Paragraph Nos.20 and 24 of the Full Bench decision. In our view, the observations made in these two paragraphs do not support the submission advanced by the learned advocate. In this case, the Full Bench of this Court has held that the appointment of employee if made on temporary basis, then it is not open to the School Tribunal to assume as a fact that the appointment was made against clear and permanent vacancy and therefore, the same is deemed to be on probation. It is held that the terms and conditions of the letter of appointment, if expressly provided that the appointment is on temporary basis and for a limited term, the same cannot be discarded. In the case before the Full Bench, the employee was duly qualified and was appointed as a Full Time Assistant Teacher. In our

29 211-LPA-352-10.odt

view, the proposition of law laid down in this Judgment is of no help and assistance to the case of the appellant. On facts, learned Single Judge found that appointment of the appellant since very inception was illegal. On consideration of the entire evidence, we do not find any fault with this finding. We have recorded a finding in the earlier part of the Judgment that the appointment of the appellant dated 18/08/1988 was in gross violation of the provisions of Section 5 of the M.E.P.S. Act and Rule 9 of the M.E.P.S. Rules.

19. Learned advocate for the respondent Nos.1 and 2

relied upon the unreported decision in the case of Union of India

and another Vrs. Raghuwar Pal Singh in Civil Appeal

No.1636/2012 dated 13/03/2018. In the case at hand, the

appointment was made by the President without authority and as

such, the said appointment is invalid. In our view, therefore, the

law laid down in this decision is squarely applicable to the facts of

this case. In this case before the Hon'ble Supreme Court of India

the appointment to the post of Veterinary Compounder was made

by one H. S. Rathore, who was not authorized to do it. The

Hon''ble Supreme Court of India has held that in absence of prior

approval of the Competent Authority, the Director Incharge could

not have hasten the issuance of appointment letter. It is held that

30 211-LPA-352-10.odt

such act of commission and omission of the then Director Incharge

would, therefore suffer from vice of lack of authority and nullity in

law. The Hon'ble Supreme Court of India has held that the

appointment order issued by a person not authorized to do the

same would be nullity and not an irregularity.

20. Upon bestowing the thoughtful consideration to the

facts and law, we conclude that the decisions relied upon by the

learned advocate for the appellant on facts are not applicable to

the case of the appellant. The decision relied upon by the learned

advocate for the respondents is a direct judgment on the point and

as such, applicable to the facts of the case. Learned Single Judge

while allowing writ petition filed by the respondent Nos.1 and 2

made threadbare analysis of the evidence and law and found that

the appointment of the appellant was invalid and void ab initio.

On considering the material placed on record afresh, we have no

hesitation to endorse our agreement with the view taken by the

learned Single Judge. In view of the facts and circumstances and

the law, the view taken by the learned Single Judge is the only

possible view in this case. We do not see any substance in the

appeal. The appeal, therefore, deserves to be dismissed. Hence,

the following order :

                                           31               211-LPA-352-10.odt

                                   ORDER


         I]     The Letters Patent Appeal stands dismissed.
         II]    In the peculiar facts and circumstances of the case,
         the parties shall bear their own costs.




               (G. A. SANAP, J.)            (A.S. CHANDURKAR, J.)

 Choulwar