Dr. T.S. Wilkinson Memorial ... vs Banteshwari W/O Yogendra Naidu
2021 Latest Caselaw 340 Bom

  J-wp6410.19.odt                                                                   1/14


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


                               WRIT PETITION No.6410 OF 2019


  1.    Dr. T.S. Wilkinson Memorial Nav-Jeevan Sanstha,
        A Registered Society,
        Having its Registration Number F-20394 (Nag),
        through its Secretary, Having its Office At 37,
        Chitnavis Layout, Byramji Town,
        Nagpur-440 013.

  2.    Dr. T.S. Wilkinson Memorial School,
        Nav-Jeevan Sanstha,
        Through its Head Mistress, Godhani,
        Having its address at Prabhat Nagar,
        Godhni, Nagpur-441111.                       :     PETITIONERS

                 ...VERSUS...

  Banteshwari w/o. Yogendra Naidu,
  Aged about 41 years,
  Occupation : Service,
  R/o. Opposite Durga Temple, Katol Road,
  Chhaoni, Nagpur-440 013.                           :     RESPONDENTS


  =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
  Shri Tejas Deshpande, Advocate for Petitioners.
  Shri Sonali Saware h/f. Shri Gadhawe, Advocate for Respondent.
  =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=


                                      Coram :    MANISH PITALE, J.

Date : 7th JANUARY, 2021.

ORAL JUDGMENT :

Heard learned counsel for the parties.

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2. Rule. Rule made returnable forthwith. Heard finally with

consent of learned counsel for the rival parties.

3. By this writ petition the management is before this Court

challenging the judgment and order dated 31.7.2019 passed by the

School Tribunal, Nagpur, whereby the appeal filed by the respondent

under Section 9 of the Maharashtra Employees of Private Schools

(Conditions of Service) Regulation Act, 1977, was allowed. The

otherwise termination of the respondent dated 30.5.2018 was set aside

and the petitioners were directed to reinstate the respondent with

backwages and continuity of service.

4. It was the case of the respondent before the Tribunal that

her service was otherwise terminated w.e.f. 30.5.2018, despite the fact

that she was working continuously with the petitioners since the year

2011. In the appeal filed by the respondent she referred to her

appointment on 16.5.2011 and stated that although the appointment

order was for a fixed period of one year, she was continued thereafter

and that therefore the respondent had acquired the status of

permanency in service. It was submitted that since she had acquired

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such status, the action of the petitioners in otherwise termination of her

service without following the due process of law was unsustainable and

that therefore her appeal deserved to be allowed.

5. The petitioners filed their reply before the Tribunal and

specifically stated that the respondent was appointed for fixed periods

of time and that she was not qualified for the post on which she was

appointed for such fixed periods.

6. On the basis of the pleadings of the rival parties, the

Tribunal framed points for determination, including the point, as to

whether the appointment of the respondent was in terms of Section 5

of the aforesaid Act.

7. The Tribunal took into consideration the pleadings and

evidence on record and gave findings in favour of the respondent,

thereby allowing the appeal in the aforesaid terms. Aggrieved by the

same, the petitioners filed the present writ petition in which notice was

issued on 24.9.2019 and this Court directed that no coercive steps be

taken against the petitioners for implementing the impugned order of

the Tribunal, subject to petitioners depositing 50% of the backwages in

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this Court. The said amount was deposited by the petitioners before

this Court and today the petition was taken up for final disposal.

8. Shri Tejas Deshpande, learned counsel appearing for the

petitioners submitted that the impugned judgment and order passed by

the Tribunal was wholly unsustainable because it was passed on an

erroneous appreciation of the material placed on record. The attention

of this Court was invited to the appointment orders dated 16.6.2011,

31.5.2012 and 19.5.2015, issued in favour of the respondent. It was

emphasized that each of these appointment orders specifically stated

that the appointment of the respondent was for specific session and that

the respondent was required to sign a contract only for that particular

session. On this basis it was submitted that when the appointment

orders were for specific periods, it could not be said that the respondent

was appointed in accordance with law i.e. Section 5 of the said Act read

with Rule 9 of the Rules framed thereunder. It was submitted that

when the respondent approached the Tribunal, as per the settled

position of law, burden was on the respondent to prove that her

appointment was in terms of Section 5 of the Act read with Rule 9 of

the Rules framed thereunder, but the respondent could not prove the

same and the Tribunal could not have issued the order in her favour.

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9. On the question of grant of 100% backwages the learned

counsel for the petitioners invited attention of this Court to the appeal

memo filed on behalf of the respondent before the Tribunal to highlight

that there was not a single statement made therein to the effect that the

respondent was not gainfully employed during the pendency of the

appeal before the Tribunal. On this basis it was submitted that the

Tribunal erred in placing the burden on the petitioners by stating that

the petitioner-management did not come with the case that the

respondent was in gainful employment after termination of his service.

It is submitted that the said approach adopted by the Tribunal was in

the teeth of law laid down by the Hon' ble Supreme Court in the case of

Deepali Gundu Surwase vs. Kranti Junior Adhyapak, (2013)10 SCC 324

and on this basis it was submitted that writ petition deserved to be

allowed.

Learned counsel for the petitioners also relied upon the

judgment of the Hon'ble Supreme Court in the case of Hindustan

Education Society and another vs. Sk. Kaleem Sk. Gulam Nabi and

others, (1997)5 SCC 152 and Judgment of the Division Bench in the

case of Priyadarshini Education Trust and others vs. Ratis (Rafia) Bano

d/o. Abdul Rasheed and others, 2007(6) Mh.L.J. 667.

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10. On the other hand, Ms. Sonali Saware, learned counsel for

the respondent submitted that the contention raised on behalf of the

respondent is unsustainable for the reason that in the reply filed before

the Tribunal, they never specifically denied the facts regarding

appointment of the respondent in the concerned school. It was

submitted that the petitioners emphasized only upon the alleged lack of

qualification of the respondent for the said post of Assistant Teacher

and further that if the stand taken by the petitioners were accepted, it

would amount to allowing the petitioners to take advantage of their

own wrong.

11. It was further submitted that the respondent had

continuously served with the petitioners since the year 2011 upto her

otherwise termination of service on 30.5.2018 and having continuously

worked for about seven years, it could not be said that the respondent

was not entitled for the relief granted by the Tribunal. The learned

counsel for the respondent relied upon the Judgments of this Court in

the case of Anoop Ganpatrao Bobde vs. Dnyansagar Bahuuddeshiya

Shaikshanik Sanstha, Yeotmal, 2016(1) Mh.L.J. 401 and Anil Dattatraya

Ade vs. Presiding Officer, School Tribunal, Amravati and others,

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2003(4) Mh.L.J. 866.

12. Having heard learned counsel for the rival parties and upon

perusal of the impugned judgment and order passed by the Tribunal,

this Court is of the opinion that the crucial aspect in the present case

pertains to the nature of appointment of the respondent in the

concerned school. This aspect assumes great significance for the reason

that a particular procedure is prescribed under Section 5 of the

aforesaid Act and Rule 9 of the Rules framed thereunder, which has

also become subject matter of discussion and interpretation in number

of judgments of this Court. The nature of appointment of an employee

assumes great significance to examine as to whether the Tribunal could

exercise power under Section 11 of the said Act to grant reliefs that

have been granted to the respondent in the present case.

13. A perusal of Section 5 of the said Act, read with Rule 9 of the

Rules framed thereunder would show that the emphasis is upon the

appointment through proper procedure according to law, which

specifically provides the procedure of issuance of advertisement, calling

for applications and selection on merit for appointment in the available

vacancies. The emphasis obviously is on ensuring that all eligible

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persons are given opportunity to compete with each other for being

selected and appointed in available vacancies. Such statutory mandate

does not contemplate appointment without following the said

procedure of advertisement, calling for applications etc. and issuing

orders of appointment for specific periods of time. In fact, under

Section 5 of the aforesaid Act, an employee appointed by following

proper procedure prescribed therein, is to be appointed on probation

for a period of two years, upon completion of which such a person

acquires the status of permanency in service.

14. This aspect has been considered in detail in the aforesaid

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

Priyadarshini Education Trust and others vs. Ratis (Rafia) Bano d/o.

Abdul Rasheed and others (supra) and, interalia, it has been held

therein as follows :

"In this context, we may also refer to the text of Sub-Section (2) of Section 5, which is already re-

produced hereinabove. From the opening part "every person appointed to fill in permanent vacancy shall be on probation for a period of two years...", it is evident that once a person is selected in the manner prescribed and duly appointed, the Management or the School Committee has no option. Such a person must be appointed on probation. If there is a permanent vacancy and if a person duly qualified is selected in the manner prescribed and then duly appointed, the Management

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has no choice or option to appoint him for a limited period such as one academic year or shorter than that.

Thus, although sub-rule (3) of Rule 9 does not specifically speak of requirement of publication of vacancies by an advertisement and inviting applications from candidates eligible and desirous of seeking appointment, as sub-rule (8) speaks for the purpose of filling up the vacancies reserved under sub-rule (7), requirement of such an advertisement must be read within the provisions for the reasons discussed hereinabove and which may be summarized, at the cost of repetition as follows.

(i) Statute is enacted for the purpose of regulating the recruitment in private schools in the State.

(ii) Interpretation that sub-rule (3) of Rule 9 does not prescribe publication of advertisement, when read in the light of sub-rule 8, would be discriminatory and capable of promoting arbitrariness and nepotism.

(iii) Such an interpretation would be against the spirit of Articles 14 and 16 of the Constitution, and therefore, interpretation which would make Rule 9 unconstitutional will have to be rejected.

(iv) When sub-section (2) of Section 5 compels the Management to appoint eligible, duly selected candidate only on probation, the backdoor entry of a person who alone knows about existence of vacancy cannot be accepted as palatable interpretation either of Rule 9 or section 5 read with Rule 9."

15. Thus, the procedure of issuance of advertisement and

inviting of applications etc. has been specifically read into and upheld in

the aforesaid judgment of this Court, while referring to Section 5 of the

said Act and Rule 9 of the Rules framed thereunder. In other words,

appointments are expected to be made by following the said procedure,

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so as to ensure that the persons who are appointed do become entitled

for the protection available to employees appointed on probation and

who attain the status of permanency on successful completion of

probation.

16. In this context, the judgment of the Hindustan Education

Society and another vs. Sk. Kaleem Sk. Gulam Nabi and others (supra)

is also significant. This is because the Hon' ble Supreme Court

specifically referred to Section 5 of the aforesaid Act and reached a

finding that even when a temporary appointment for a limited period is

made on clear vacancy it could not be said to be an appointment as

contemplated under Section 5 of the aforesaid Act.

17. In this backdrop when the appointment orders issued in

favour of the respondent are perused it becomes clear that in each of

the aforementioned orders of appointment, it was specifically

mentioned that the respondent was being appointed for a limited

period of that particular session. It was also stated in one of the clauses

of such orders of appointment that the respondent was to sign a

contract only for that particular session. There is nothing on record to

show that even while making such appointment any procedure of

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advertisement, calling for applications etc. was ever followed. The

material available on record clearly demonstrates that the respondent

had failed to discharge the burden of showing that her appointment was

in terms of requirement of the aforesaid Act and Rules. In such a

situation, the case of the respondent could not travel any further, only

on the basis of the statement made in reply filed by the petitioners

before the Tribunal. In fact, in the reply the petitioners did emphasize

that the appointment orders issued in favour of the respondent were

only for specific periods and her service came to an end at the end of

respective academic sessions.

18. A perusal of the impugned judgment order would show that

although a specific point with regard to the question of appointment of

the respondent as per Section 5 of the said Act was framed, but the

finding rendered thereon was wholly erroneous. The Tribunal did

make reference to the aforesaid judgment of the Hon'ble Supreme

Court in the case of Hindustan Education Society and another vs. Sk.

Kaleem Sk. Gulam Nabi and others (supra), but the Tribunal brushed

aside the same without dealing with the position of law. The Tribunal

appears to have been impressed by the fact that the respondent had

worked for about seven years with the petitioners, without appreciating

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that in terms of position of law interpreted by the Division Bench of this

Court in its Judgment in the case of Priyadarshini Education Trust and

others vs. Ratis (Rafia) Bano d/o. Abdul Rasheed and others (supra),

the order of appointment for specific period issued in favour of the

respondent, could not be said to be an appointment as contemplated

under Section 5 of the said Act. Once such a finding is reached, it

becomes clear that the whole basis of the impugned judgment and

order passed by the Tribunal is rendered erroneous.

19. In this context, the judgments on which the learned counsel

for the respondent has placed reliance would not be of much assistance

to her. This is for the reason that in the case of Anoop Ganpatrao

Bobde vs. Dnyansagar Bahuuddeshiya Shaikshanik Sanstha, Yeotmal

(supra) in paragraph 3, it is specifically recorded that it was an

undisputed factual position that an advertisement was issued and the

petitioner therein had applied for the post. He was interviewed by the

competent authority and appointed as Assistant Teacher. The facts in

this case are clearly distinguishable. Similarly, in the case of Anil

Dattatraya Ade vs. Presiding Officer, School Tribunal, Amravati and

others (supra), it is recorded that the petitioner therein was appointed

as per appointment order, which did say in one of the clauses that the

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appointment was temporary for an academic year, but in various other

clauses it was specifically stated that the petitioner therein was to serve

the institution for two years on probation and that his appointment was

in the capacity of being under probation. Thus, on facts the said

judgment is also clearly distinguishable.

20. In view of the conclusion that this Court has reached, in the

context of the impugned judgment and order of the Tribunal on the

aspect of nature of appointment of the respondent, any discussion on

the question of backwages is not warranted. But, suffice it to say that

the Tribunal erred in placing a reverse burden on the petitioner when

admittedly the respondent nowhere made a statement, much less on

affidavit, that she was not gainfully employed during the pendency of

the proceeding before the Tribunal.

21. In view of above, it becomes clear that the impugned

judgment and order passed by the Tribunal is wholly unsustainable and

it deserves to be set aside. Consequently, the writ petition is allowed.

The impugned judgment and order passed by the Tribunal is set aside

and the appeal filed by the respondent before the Tribunal stands

dismissed. There shall be no orders as to costs.

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22. Rule is made absolute in the above terms.

23. Applications, if any, stand disposed of. Consequently, the

petitioners are permitted to withdraw the amount deposited in this

Court along with accrued interest, if any.

JUDGE okMksns