Bombay High Court
The Vidarbha Youth Welfare ... vs The State Of Maharashtra, Thr.Its ... on 15 November, 2021
Bench: Avinash G. Gharote
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.4272/2016
PETITIONERS : 1. The Vidarbha Youth Welfare
(Original Society, a society registered under the
Resp. No.1) Societies Registration Act, 1960 and
having its registered office at Camp,
Amravati through its President.
2. The Principal, Vadarbha Youth Welfare
(Original Society's Polytechnic, Badnera,
Resp. No.2) Anjangan Bari Road, Badnera (Rly.)
Dist. Amravati.
...VERSUS...
RESPONDENTS : 1. The State of Maharashtra
through its Secretary, Deptt. of
Higher and Technical Education,
Mantralaya, Mumbai - 400 032.
(Original 2. Deputy Director of Technical
Resp. No.3) Education, Regional Office,
Amravati, Tq. & Dist. Amravati.
(Original 3. Shri Manohar Govindram Kalalkar,
Appellant) aged 44 Yrs., Occu : not known,
R/o Waruda, Badnera, Amravati,
Tq. & Dist. Amravati.
WITH
WRIT PETITION NO.4270/2016
PETITIONERS : 1. The Vidarbha Youth Welfare
(Original Society, a society registered under the
Resp. No.1) Societies Registration Act, 1960 and
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WP 4272 of 2016.odt
2
having its registered office at Camp,
Amravati through its President.
2. The Principal, Vadarbha Youth Welfare
(Original Society's Polytechnic, Badnera,
Resp. No.2) Anjangan Bari Road, Badnera (Rly.)
Dist. Amravati.
...VERSUS...
RESPONDENTS : 1. The State of Maharashtra
through its Secretary, Deptt. of
Higher and Technical Education,
Mantralaya, Mumbai - 400 032.
(Original 2. Deputy Director of Technical
Resp. No.3) Education, Regional Office,
Amravati, Tq. & Dist. Amravati.
(Original 3. Shri Vilas S/o Madhukar Yewale (Yeole),
Appellant) age : 27 years, Occu : not known,
R/o Bhankhada (Khu.) Tq. & Dist. Amravati.
WITH
WRIT PETITION NO.4271/2016
PETITIONERS : 1. The Vidarbha Youth Welfare
(Original Society, a society registered under the
Resp. No.1) Societies Registration Act, 1960 and
having its registered office at Camp,
Amravati through its President.
2. The Principal, Vadarbha Youth Welfare
(Original Society's Polytechnic, Badnera,
Resp. No.2) Anjangan Bari Road, Badnera (Rly.)
Dist. Amravati.
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WP 4272 of 2016.odt
3
...VERSUS...
RESPONDENTS : 1. The State of Maharashtra
through its Secretary, Deptt. of
Higher and Technical Education,
Mantralaya, Mumbai - 400 032.
(Original 2. Deputy Director of Technical
Resp. No.3) Education, Regional Office,
Amravati, Tq. & Dist. Amravati.
(Original 3. Shri Pankaj Rajesh Ingle
Appellant) age : 41 years, Occ : not known,
R/o Talvel, Tq. Chandur Bazar,
Dist. Amravati.
WITH
WRIT PETITION NO.4269/2016
PETITIONERS : 1. The Vidarbha Youth Welfare
(Original Society, a society registered under the
Resp. No.1) Societies Registration Act, 1960 and
having its registered office at Camp,
Amravati through its President.
2. The Principal, Vadarbha Youth Welfare
(Original Society's Polytechnic, Badnera,
Resp. No.2) Anjangan Bari Road, Badnera (Rly.)
Dist. Amravati.
...VERSUS...
RESPONDENTS : 1. The State of Maharashtra
through its Secretary, Deptt. of
Higher and Technical Education,
Mantralaya, Mumbai - 400 032.
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WP 4272 of 2016.odt
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(Original 2. Deputy Director of Technical
Resp. No.3) Education, Regional Office,
Amravati, Tq. & Dist. Amravati.
(Original 3. Shri Mohan s/o Bharatram Bhise,
Appellant) aged : 34 years, Occ : not known,
R/o C/o Shri Mukund Ughale,
Plot No.42, MIG, Colony, New Town,
Badnera, Tq. & Dist. Amravati.
-----------------------------------------------------------------------------------------------
Shri R.D. Bhuibhar, Advocate for petitioners in all petitions
Shri S.M. Ukey, Addl. G.P. for respondent nos.1 and 2 in all petitions
Shri P.A. Kadu, Advocate for respondent no.3 in all petitions
-----------------------------------------------------------------------------------------------
CORAM : AVINASH G. GHAROTE, J.
Date of reserving the judgment : 01/10/2021
Date of pronouncing the judgment : 15/11/2021
JUDGMENT
1. Rule. Rule made returnable forthwith. Heard learned
Counsels for the parties.
2. All these petitions by the employer, challenge the
judgments delivered by the learned School Tribunal, Amravati dated
23/3/2016 in Appeals filed by the employees who were terminated
by the petitioners, which termination has been set aside by the
learned School Tribunal by the impugned judgments. Since a
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common question arises in these petitions, as indicated below these
petitions have been heard together and are being decided by this
common judgment.
3. In Writ Petition No.4272/2016 the respondent no.3-
Shri Manohar Govindram Kalalkar, had in pursuance to an
advertisement in daily news paper 'Hindustan'' published on
12/1/2008 by the petitioner, applied and was initially, by an order
dated 1/2/2008 appointed as a Laboratory Attendant on contract
basis in the Electronics and Telecommunication Department of the
Polytechnic College, run by the petitioner no.1, having been selected
in the interview held on 15/1/2008, and having been recommended
by the Selection Committee. The appointment was stated to be
temporary and on contract basis for the academic session 2007-2008
on fixed remuneration of Rs.2,000/- per month. The said
appointment order indicated that on completion of the session, the
appointment of the respondent no.3 will be automatically
terminated without any prior notice and in case the respondent no.3
agreed to the above terms, he should join duties immediately, which
was so done by the respondent no.3. The respondent no.3 thereafter,
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was continued for the subsequent academic sessions with artificial
breaks after each session. On 1/2/2013 a fresh appointment order
came to be issued to the respondent no.3, in which he was again
appointed as a Laboratory Assistant, w.e.f 1/2/2013. Clause -1 of the
appointment order indicated that the appointment was temporary,
however, no period was mentioned. Clause - 2 of the appointment
order, indicated that the appointment was on 1-2 years probation,
which would commence from the date the respondent no.3 joins.
Clause-3 stated that the seniority of the respondent no.3, would be
counted from 1/2/2013 to the post of Laboratory Assistant.
Clause - 7 indicated that in case the respondent no.3 wanted to
leave the employment in the future he would have to give an
advance one month's notice or salary of one month in lieu of the
same. Clause - 8 required the respondent no.3 to acquire the
requisite educational qualifications, as per the Rules in case he did
not have it. The services of the respondent no.3 came to be
terminated by the order dated 30/4/2014. This order of termination
referred to the order of the Hon'ble Joint Charity Commissioner,
Amravati in Appeal No.3/2010 and Appeal No.4/2010 dated
13/12/2011, whereby the Management of the petitioner no.1-
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Society was declared illegal, which was upheld up to the Hon'ble
Apex Court. It further indicated that the Executive Council of the
Society in its meeting held on 29/3/2014 had resolved to follow the
decisions as rendered in the above matters. It further referred to the
order of the Chairman dated 30/4/2014, by which he had
communicated that the services of non-teaching staff was appointed
without due procedure approved by competent authority and was
required to be terminated immediately, placing reliance upon which,
the services of the respondent no.3 were terminated with immediate
effect. This termination came to be challenged by the respondent
no.3 by filing an appeal under Section 9 (1) of the Maharashtra
Employees of Private Schools (Conditions of Service) Regulation Act,
1977 (for short, "the MEPS Act", hereinafter), in which by judgment
dated 23/3/2016, the learned School Tribunal, Amravati has
allowed the same, thereby quashing and setting aside the
termination order dated 30/4/2014 and directing reinstatement
with all consequent benefits of continuity and back wages, which is
the subject matter of challenge in the present petitions.
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3.1. In Writ Petition No.4269/2016, the respondent no.3-
Shri Mohan Bharatram Bhise, in pursuance of an advertisement in
daily news paper 'Hindustan'' published on 12/1/2008, issued by the
petitioner, had applied for the post of Laboratory Attendant, and was
interviewed by the Selection Committee on 15/1/2008, which
selected him, pursuance to which by an order dated 1/2/2008, he
was appointed on temporary/contract basis for the academic session
2007-08 on fixed remuneration. This appointment was continued
from time to time with artificial breaks at the end of each academic
session and on 1/2/2013, the petitioner was appointed as a
Laboratory Attendant. The language of his appointment order is
identical with that of the petitioner in Writ Petition No.4272/2016.
The respondent no.3, came to be terminated on 30/4/2014. Appeal
preferred by him to the School Tribunal came to be allowed on
23/3/2016.
3.2. In Writ Petition No.4270/2016, the respondent no.3-
Shri Vilas Madhukar Yewale (Yeole), in pursuance of an
advertisement in daily news paper 'Hindustan' published on
12/1/2008, issued by the petitioner, had applied for the post of
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Laboratory Attendant, and was interviewed by the Selection
Committee, on 15/1/2008 which selected him, pursuance to which
by an order dated 2/2/2009, he was appointed on
temporary/contract basis for the academic session 2008-09 on fixed
remuneration. This appointment was continued from time to time,
with artificial breaks at the end of each academic session and on
12/2/2014, the petitioner was appointed as a Laboratory Attendant.
The language of this appointment order is identical with that of the
petitioner in Writ Petition No.4272/2016. The respondent no.3,
came to be terminated on 30/4/2014. Appeal preferred by him to
the School Tribunal came to be allowed on 23/3/2016.
3.3. In Writ Petition No.4271/2016, the respondent no.3-
Shri Pankaj Rajesh Ingle, in pursuance of an advertisement in daily
news paper 'Hindustan' published on 12/1/2008, issued by the
petitioner, had applied for the post of Laboratory Attendant and was
interviewed by the Selection Committee on 15/1/2008, which
selected him, pursuance to which by an order dated 1/2/2008, he
was appointed on temporary/contract basis for the academic session
2007-08 on fixed remuneration. This appointment was continued
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from time to time with artificial breaks at the end of each academic
session and on 1/2/2013, the petitioner was appointed as a
Laboratory Attendant. The language of his appointment order is
identical with that of the petitioner in Writ Petition No.4272/16. The
respondent no.3, came to be terminated on 30/4/2014. Appeal
preferred by him to the School Tribunal came to be allowed on
23/3/2016.
4. Shri R.D. Bhuibhar, learned Counsel for the petitioners
submits that:
(a) The appointment of the respondent no.3, by the order
dated 1/2/2008, after advertisement, interview, selection and
recommendation by the Selection Committee, was on a contract
basis for the academic session 2007-2008.
(b) This was continued four times till 2013, in which year
by the order dated 1/2/2013, the respondent no.3 was appointed
again as a Laboratory Attendant on a temporary basis and therefore,
his termination by the order dated 30/4/2014, on the ground that
the Management was complying with the declaration regarding the
Managing Committee being declared illegal and the employment of
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the respondent no.3 was without following due procedure of
selection could not be faulted with.
(c) There was no presumption that the appointment was
against a clear/permanent vacancy as it existed in 2008 and the
appointment was only as a stopgap arrangement.
(d) The Tribunal had disregarded the terms of the
appointment dated 1/2/2013. The Format in Schedule-D of the
Maharashtra Employees of Private Schools (Conditions of Service)
Rules, 1981 (for short, "the MEPS Rules" hereinafter), is also relied
upon to contend that the appointment was not on a permanent
basis.
(e) There was no discussion regarding entitlement to full
back wages and the relief was merely granted in the operative part.
(f) Even if the Tribunal was of the opinion that the
termination was illegal it could have instead of directing
reinstatement granted compensation under Section 11 (2) (e) of the
MEPS Act.
(g) There was no plea or material before the learned
Tribunal to indicate that the respondent no.3 had been appointed on
probation.
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(h) Relying upon Rule 28 of the MEPS Rules, it is submitted
that in case one month's notice is not given, that at the most would
entitle the employee, for salary in lieu of notice, which could not be
awarded and there was no question of granting any reinstatement
on this count. No other argument was advanced.
(i) Shri Bhuibhar, learned Counsel for the petitioners relied
upon the decisions in Ramkrishna Chauhan Vs. Seth D.M. High
School and others, 2013 (2) Mh. L.J. 713; Narendra Keshaorao
Meshram Vs. Presiding Officer, School Tribunal, Nagpur and others,
2014 (3) Mh.L.J. 881; Navjeevan Shikshan Sanstha, Bhishnur and
another Vs. Chandrashekhar Anandraoji Rewatkar and others, 2015
(1) Mh.L.J. 782 , which has been reversed in Civil Appeal Nos.842-
843 of 2017 (Chandrashekhar Anandraoji Rewatkar Vs. Navjeevan
Shikshan Sanstha and others), decided on 23/1/2017 by the
Hon'ble Apex Court; Vasant Shikshan Prasarak Mandal Through Its
President and others Vs. Sate of Maharashtra and others, 2017 (1)
Mh.L.J. 67; Rajasthan State Road Transport Corporation, Jaipur Vs.
Phool Chand (Dead) through Legal Representatives, (2018) 18 SCC
299; Society of Sisters of Saint John, Mhasala, Wardha and another
Vs. Arvind s/o Narayan Lajurkar and others, 2020 (3) Mh.L.J. 186.
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5. Shri P.A. Kadu, learned Counsel for the respondent no.3
submits as under :
(a) The advertisement dated 12/1/2008, does not indicate that
the posts were temporary. Interview was conducted on 15/1/2008
by the Selection Committee, the respondent no.3 was selected and it
is only on the recommendation of the Selection Committee that the
respondent no.3 was appointed and therefore the entire due process
for selection and appointment as required by law was duly followed.
(b) The respondent no.3 was continued for the subsequent
sessions till 2013, though with technical breaks, which would
indicate the continued existence of the vacancy, occupied by the
respondent no.3.
(c) Though the initial appointment was on a temporary
basis the same had to be regarded as being an appointment on
probation. He submits that the judgment of the Full Bench in
Ramkrishna Chauhan (supra) was not attracted.
(d) There was no dispute about the respondent no.3 not
fulfilling the required educational qualifications for the post of
Laboratory Attendant.
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(e) Reliance is also placed upon the Resolution of the Local
Management Committee, which had resolved to regularize the
services of all employees working on limited emoluments in its
meeting dated 8/11/2012.
(f) Relying on Section 5 of the MEPS Act, it is submitted
that the Act does not permit the Management to engage the services
of employees on temporary basis for years together, which could
only be done as a stopgap arrangement and not as a continuous
practice, and therefore, in light of the language of Section 5 of the
MEPS Act, it could only be held that the appointment was on
probation for a period of two years. It is therefore submitted that the
first appointment dated 1/2/2008 itself, should be treated as an
appointment on probation.
(g) Once the order of termination is found to be bad in law,
contrary to the requirements of Rule 28 (1) of the MEPS Rules,
reinstatement should follow.
(h) In so far as back wages granted by the learned School
Tribunal is concerned, it was submitted that para 3 records that the
respondent no.3 was not gainfully employed, to which there was no
counter and therefore, in view of what was stated by the Hon'ble
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Apex Court in Deepali Gundu Surwase Vs. Kranti Junior Adhyapak
Mahavidyalaya (D.Ed.) and others, (2013) 10 SCC 324 the grant of
back wages could not be faulted with. No other arguments were
advanced.
(i) Shri Kadu, learned Counsel for the respondent no.3
relies upon the decisions in Shikshan Prasarak Mandal, Wani Vs.
Presiding Officer, School Tribunal, Amravati and another, 2005 (4)
Mh.L.J. 485; Ramchandar Ramadhar Yadav Vs. Hyderabad (Sind)
National Collegiate Board and another, 2006 (2) Mh.L.J. 532;
Rehana Begun d/o Sk. Safdar Vs. Khwaja Baba Urdu Education
Society, Amravati and others, 2009 (3) Mh.L.J. 665; Abdul Rafique
Abdul Hamid Vs. Yavatmal Islamia Anglo Urdu Education Society
and others, 2014 (3) Mh.L.J. 99; Shri Bhagwan Mahavir Primary
School and another Vs. Presiding Officer, School Tribunal, Amravati
Division and others, 2014 (3) Mh.L.J. 161; Shamin Azad Education
Society, Giroli and others Vs. Presiding Officer, School Tribunal,
Amravati and others, 2014 (4) Mh.L.J. 723; Maulana Azad
Educational Trust, Aurangabad and others Vs. Uzma Khanam Mirza
Moin Ullah Baig and another, 2016 (5) Mh.L.J. 325; Anil s/o
Govindrao Korde Vs. Siddheshwar Krida Mandal, Sillod and others,
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2016 (6) Mh.L.J. 933; Jeevan Shikshan Mandal, Umred and another
Vs. Umesh Gangadharrao Mohod and another, 2019 (6) Mh.L.J.
728.
6. The Full Bench of this Court in Ramkrishna Chauhan
(supra) while considering the question of appointments made by
the managements under Section 5 of the MEPS Act, held as under :
"12. The question is: whether the provisions, extracted above,
have the propensity to whittle down that authority of the
Management? Indisputably, the governing provision regarding
the conditions of service of employees of the private schools can
be traced to section 5 of the Act of 1977. Sub-section (1)
thereof postulates that the Management shall fill in the
permanent vacancy as soon as possible. It further provides that
the appointment of a person duly qualified, to fill permanent
vacancy, should be made in the manner prescribed. It is one
thing to suggest that the permanent vacancy in a private school
must be filled only by a duly qualified person and in the manner
prescribed. But, that does not necessarily mean that the
inherent powers of the Management to make appointment on
contractual basis, is expressly or impliedly taken away, by law.
There is nothing in this sub-section to indicate to the contrary.
13. Indeed, this provision obliges the Management to fill in the
permanent vacancy "as soon as possible". The term "as soon as
possible" would mean that it has to be done within a reasonable
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time. That is a relative term. Nevertheless, by virtue of mandate
of section 5(1), there is implicit obligation on the Management
to fulfil that requirement at the earliest, to wit, before
commencement of the new academic year. That is so because, a
permanent vacancy is one, which is in respect of a sanctioned
post and in the case of an aided school, entitles the
Management to receive commensurate grants in aid from the
Government. Further, the sanctioned post for a school is
prescribed by the State Authority keeping in mind the
benchmark to be maintained for imparting high quality
education and maintaining discipline in the school -
commensurate with the strength of the students in the school.
Thus, keeping the permanent vacancy unfilled for a long time,
may entail in dilution of imparting of quality education. A
fortiori, though the Management has implicit power to appoint
a duly qualified person on contractual employment even against
a permanent vacancy but, that must be only an interim
arrangement till a suitable candidate is found in the selection
process. It cannot be continued on year to year basis in
succession. If the Management holds the selection process in the
prescribed manner but wants to appoint the selected candidate
on temporary basis must contemporaneously record tangible
reasons as to why the selected candidate is not suitable to be
appointed on probation against the permanent vacancy. In that
event, the Appropriate Authority can consider the challenge to
the appointment on temporary basis instead of probation,
against a permanent vacancy. Further, the Management,
receiving grants-in-aid, from the Government, should not and
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cannot be permitted to appoint a duly qualified person on
temporary basis against a permanent vacancy, without holding
of selection process as soon as possible in the prescribed
manner. Besides, in spite of availability of a suitable candidate
identified in the selection process held to fill in the permanent
vacancy, the Management cannot appoint him on temporary
basis against a permanent vacancy. Any other view would be
antithesis to the mandate of section 5(1) of the Act and against
the principle underlying the exposition of the Apex Court in the
case of Ratan Lal v. State of Haryana, as it would be hit by
Articles 14 and 16 of the Constitution of India.
14. ---------
15. ---------
16. The question is, whether the Management has unbridled
power and authority to appoint a duly qualified person on
temporary basis against a permanent vacancy? As aforesaid, the
Management is, primarily, under an obligation, in law, by virtue
of section 5(1), to fill in the permanent vacancy as soon as
possible. To wit, if a permanent vacancy is caused by any
reason, before the commencement of the new academic year,
the Management must take immediate steps to fill in that
vacancy, by appointing a duly qualified person, after following
the prescribed procedure, on probation, for a period of two
years. That means, the selection process must be held to, as far
as possible, culminate with selection of a duly qualified person,
before the commencement of the new academic year. However,
for some fortuitous or tangible reason, such selection process
cannot be commenced or for that matter completed, there
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would be nothing wrong if the Management were to appoint a
duly qualified person on contractual or temporary basis, for a
limited duration, so that, in the mean time, the prescribed
procedure to select a duly qualified person, to fill in the
permanent vacancy is completed and the selected person can be
appointed on probation, against the permanent vacancy. There
may be situation where the Management makes efforts in right
earnest to complete the selection process but, at the end of the
process, it is confronted with a situation where the person who
participated in the selection process, though duly qualified, in
its perception is not suitable for appointment. In that event, it
can certainly make an appointment on contractual or temporary
basis, for a limited duration, so that new selection process can
be commenced and concluded within a reasonable time.
17. Ordinarily, if the selection process is commenced and at the
end of the selection process a person duly qualified is available
and is found to be suitable, the Management is under an
obligation to appoint him on probation, to fill in the permanent
vacancy. This mandate flows from conjoint reading of sub-
section (1) and (2) of section 5. The only exception is, where a
person identified in the selection process is duly qualified but is
not found suitable by the Management, the Management is free
to exercise its inherent power of making a contractual or
temporary appointment. Indeed, whether a person, who had
participated in the selection process, is suitable for being
appointed or otherwise, is the subjective satisfaction of the
Management. Merely because a person is duly qualified, that
per se is not enough. The person must not only be duly qualified
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to fill the permanent vacancy but, must also be found to be
suitable by the Management. However, the Management cannot
be permitted to take cover under the pretext of successively
rejecting the candidates in selection process on the ground of
suitability; and keep on appointing same person or different
persons on contractual or temporary basis for limited duration,
against a permanent vacancy. In cases where the Management
takes a conscious decision to appoint a duly qualified person on
temporary basis, for a limited period against a permanent
vacancy, it must contemporaneously record its subjective
satisfaction in that behalf. For, if the appointment order on
contractual basis were to be made subject-matter of challenge
before any Authority or Court of law, in such inquiry, it may be
open to examine the controversy on the touchstone of
permissibility of judicial review of such decision. If finding of
colourable exercise of power by the Management is arrived at in
that inquiry, appropriate direction can be issued against the
Management. That will have to be examined on case to case
basis.
18. 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
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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.
19. --------
20. Relying on sub-section (5) of section 5, it was argued that
the Act makes distinction between "permanent vacancy" and a
"temporary vacancy". While appointing a person against a
temporary vacancy, the order of appointment has to be drawn in
the prescribed form and it must state the period of appointment
of such person. It was submitted that this sub-section is
indicative of the scheme of section 5. It makes a marked
departure when the appointment is to be made against a
permanent vacancy. No doubt, this provision deals with a
specific category of vacancy namely, temporary vacancy and the
manner of filling in that vacancy. However, this provision cannot
be construed to mean as forbidding the Management from
making contractual or temporary appointment in respect of a
permanent vacancy, if the situation so warrants, which is the
implicit power of the Management while making appointment
against a permanent vacancy. The only word of caution we may
add, is, ordinarily, when appointment is to be made against a
permanent vacancy, the Management is obliged to follow the
prescribed procedure in that behalf but, only when the selection
process cannot be taken to its logical end or because of
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unsuitability of the candidates, the Management may be
justified in appointing a duly qualified person for a temporary
period. In that case, however, the Management is under a legal
obligation to initiate the process for appointing a duly qualified
suitable person against the permanent vacancy on probation, at
the earliest.
21.--------
22. --------
23. -----
24. The other legal principle, which is indisputable, is that, if
the parties accept the terms and conditions stipulated in the
appointment order, later on, it is not open to the employee to
challenge that appointment, being contrary to the Rules or on
the ground that the terms and conditions stipulated therein
were not legally valid. This legal position is restated in para 8 of
Kalpataru Vidya Samasthe (supra). In the facts of the present
case, it is noticed that the initial appointment of the Writ
Petitioner, in the leading Writ Petition, was on temporary basis
for a limited period. After his service was terminated, once
again he was appointed in the following academic year, on the
same post but, on temporary basis. When the said Petitioner
was appointed in the succeeding academic years, he had
become fully aware about the terms and conditions of his initial
appointment, yet he continued to be in the employment,
without any demur. Suffice it to observe that if the appointment
order mentions that the appointment is on temporary basis or
for a limited period, it is not open to the employee to assume
that he was appointed on probation against permanent vacancy,
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nor it is open to the School Tribunal or the Court of law to
assume that fact. That is a question of fact to be pleaded and
proved in appropriate proceedings, on case to case basis. We
hold that there is no legal fiction or deeming provision that
every appointment made against the permanent vacancy, is
deemed to be on probation, though the Management makes that
appointment on temporary basis, having found that the
candidates appeared in the selection process were unsuitable.
28. 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."
Thus, though the right of the Management to appoint a person on a
temporary basis in a permanent vacancy cannot be disputed and the
Tribunal cannot disregard the terms of appointment and assume as
matter of fact that the appointment made against a clear and
permanent vacancy is deemed to be on probation, certain riders
have been put, namely :
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(a) the Management cannot be permitted to take cover under the
pretext of successively rejecting the candidates in selection
process on the ground of suitability; and keep on appointing
same persons or different persons on contractual or temporary
basis for limited duration, may be for an academic session, at a
time, against a permanent vacancy, on year to year basis.
(b) in cases where the Management takes a conscious decision to
appoint a duly qualified person on temporary basis, for a
limited period against a permanent vacancy, it must
contemporaneously record its subjective satisfaction in that
behalf.
(c) only when the selection process cannot be taken to its logical
end or because of unsuitability of the candidates, the
Management may be justified in appointing a duly qualified
person for a temporary period. In that case, however, the
Management is under a legal obligation to initiate the process
for appointing a duly qualified suitable person against the
permanent vacancy on probation, at the earliest.
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Thus, in all cases where the Management resorts to filling a clear
and permanent vacancy on a temporary basis or on contract basis, it
will have to satisfy, the test of the riders as put upon the exercise of
its powers as spelt out in Ramkrishna Chauhan (supra) and where
an employee is able to point out that these tests are not satisfied
then he would be entitled to call for a presumption of being
appointed on probation, depending upon the facts and
circumstances of each case, for the reason as held in Ramkrishna
Chauhan (supra) that ordinarily, if the selection process is
commenced and at the end of the selection process a person duly
qualified is available and is found to be suitable, the Management is
under an obligation to appoint him on probation, to fill in the
permanent vacancy, which mandate flows from conjoint reading of
sub-section (1) and (2) of Section 5 of the MEPS Act.
7. The law as laid down in Ramakrishna Chavan (supra)
has been taken into consideration by this Court in Shamin Azad
Education Society (supra) [which judgment has been stayed by the
Hon'ble Apex Court in SLP (C) No.14377/2014 by its order dated
4/7/2014; Abdul Rafique Abdul Hamid (supra); Shri Bhagwan
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Mahavir Primary School (supra) [ SLP (C) No.10392/2014, against
which has been dismissed by the Hon'ble Apex Court on 2/5/2014] ;
Ramchandar Ramadhar Yadav (supra); Uzma Khanam Mirza Moin
Ullah Baig (supra) wherein the practice of the management of
appointing employees on temporary basis on clear permanent
vacancies for years together was frowned upon and the termination
is set aside directing reinstatement. Shikshan Prasarak Mandal, Wani
(supra) has already been considered in Ramkrishna Chauhan
(supra).
8. In Priyadarshini Education Trust and others Vs. Ratis
(Rafia) Bano d/o Abdul Rasheed and others, 2007 SCC OnLine Bom
720 : 2007 (6) Mh. L.J. 667, the learned Division Bench of this
Court, while considering the provisions of Section 5 of the MEPS Act,
relating to appointments, has held as under :-
"44. In order to claim benefit of deemed permanency, a
teacher must be duly selected, he must be appointed in clear
permanent vacancy, his appointment must not be for a
fixed/limited period, and preferably it ought to indicate that the
appointment is on probation. If and only if these conditions are
fulfilled, a teacher will be able to claim deemed permanency on
completion of service of two years from the date of appointment
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on probation or at least by an appointment fulfilling all above
conditions, even though the order may not specifically indicate
that he is appointed on probation."
9. The position therefore has to be tested on the basis of
facts as availing in the present matters and the riders / tests as laid
down in Ramkrishna Chauhan (supra) and Priyadarshini Education
Trust (supra) being satisfied.
10. The question of suitability of the respondent no.3, in all
these petitions does not arise, as all of them had appeared before the
Selection Committee, were duly interviewed, their educational
qualifications examined and all of them having been found suitable
for the posts, were selected by the Selection Committee, only after
which they were appointed. There is nothing on record to indicate
any subjective satisfaction on part of the petitioner, that even though
the respondent no.3 in all these petitions were duly qualified, the
vacancies were permanent, they complied with the educational
qualifications, were found suitable for the post by the Selection
Committee, why the petitioner took a decision to appoint them for a
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limited period, which subjective satisfaction is required to be
recorded as is held by the Hon'ble Full Bench in Ramkrishna
Chauhan (supra). Nor is it a case where the selection process could
not be taken to its logical end, requiring the petitioner to resort to a
temporary/contractual appointment. The petitions thus fail the test
of the riders as laid down in Ramkrishna Chauhan (supra) as there is
nothing on record placed by the petitioner before the learned School
Tribunal or in these petitions, to indicate that the riders as put by the
Hon'ble Full Bench in Ramkrishna Chauhan (supra) were satisfied.
This being the position, then considering the mandate of
Section 5(1) of the MEPS Act, as elucidated in Ramkrishna Chauhan
(supra) itself, the appointment of the respondent no.3, in all these
petitions, ought to be considered on probation since the date of their
appointment, itself.
11. There is no dispute that in all the petitions the
appointment of the respondent no.3/employee at the initial stage,
was after inviting the application by publishing advertisement, which
was so published in the local daily 'Hindustan' on 12/1/2008,
conducting of interview by the Selection Committee on 15/1/2008,
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in which they were declared successful, having also satisfied the
educational criteria for the post for which they were selected. It is
also not disputed that the appointment of these persons was in clear
and permanent vacancies, as is indicated by their continuation in the
said post from 2008 till 2014, though with formal orders of
termination, after each session.
12. A perusal of the advertisement dated 12/1/2008, as
published in the local daily 'Hindustan', clearly demonstrates that
applications were being invited for filling the five (5) vacant posts of
Laboratory Attendants, available with the petitioner. The
advertisement though states that these vacant posts were to be filled
in on limited monthly remuneration of Rs.2000/- it does not state
that such an appointment would be either on contract or temporary
basis or for a limited duration. The modus operandi of the
Management, in spite of the availability of clear and permanent
vacancies, of appointing employees on temporary or contract basis
for years together has been time and again frowned upon by the
Courts, as such an action, does not ensure stability in the field of
education.
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13. It is also material to note that the minutes of the Local
Managing Committee dated 8/11/2012, vide Resolution No.9 A,
placed on record indicate that the Local Managing Committee had
resolved to regularise the services of such Laboratory Attendants,
who had completed 5 years of service with the petitioner, which
again supports the position that the appointment of the respondent
no.3, in all the petitions was in a clear and permanent vacancy.
14. That the appointment of the respondent no.3 in all the
petitions was in a clear and permanent vacancy is a position which is
also not disputed by the petitioner and the procedure and
requirement as clarified by this Court in Priyadarshini Education
Trust (supra) also stood complied with/ fulfilled.
15. Thus in absence of the petitioner passing the riders as
enunciated in Ramkrishna Chauhan (supra) it will have to be held
that the dictum of Section 5(2) of the MEPS Act, which mandates
that every person appointed to fill a permanent vacancy shall be on
probation for a period of two years, on completion of which he shall
be deemed to have been confirmed, will have to be applied to the
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respondent no.3, in all these petitions, which has been so applied by
the learned School Tribunal and in my considered view rightly.
16. The object of the MEPS Act, as is evident from the
preamble is to regulate the recruitment and conditions of service of
employees in certain private schools in the State, with a view to
provide such employees security and stability of service to enable
them to discharge their duties towards the pupils and their
guardians in particular, and institution and society in general,
effectively and efficiently. This being the purpose for enactment of
the MEPS Act, the Managements cannot be permitted to appoint and
continue such appointments, on contract or temporary basis, with
formal orders of termination, after each session, contrary to the
riders as put in Ramkrishna Chauhan (supra) as permitting the
Management to do so, would defeat the very purpose of the
enactment.
17. Even presuming otherwise, and taking into
consideration the argument of Shri Bhuibhar, learned Counsel for
the petitioners that the appointment orders dated 1/2/2013 and
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12/2/2014, vide Clause no.1, specifically stated that the
appointment was temporary, Clause no.2 in the same order cannot
be lost sight of, which specifically states that the appointment of the
respondent no.3, was on probation of 1-2 years, which would
commence from the date of joining and considering the purpose of
the enactment, the provisions will have to be beneficially interpreted
in favour of the employee, and it will have to be held that the
appointment was on probation, and therefore the same could not
have been terminated without following the mandate of Section 5(3)
of the MEPS Act [see Rehana Begum d/o Sk. Safdar (supra)], which
is not spelt out from the termination orders, considering which also
the termination order could not be sustained. So also considering
what has been held regarding the appointment of the respondent
no.3, in all these petitions, the provisions of Rule 28 (1) of the MEPS
Rules, would clearly not be attracted in view of which Narendra
Keshaorao Meshram (supra) would not be applicable on the facts of
the present matter. So also as this is not a case of termination on the
ground of misconduct, Umesh Gangadharrao Mohod (supra) would
also not be attracted.
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18. The reading of Section 5 of the MEPS Act, does not
indicate that the prior permission of the Education Officer is
necessary to fill in a vacancy. What the proviso to Section 5(1)
mandates is that in case of the Management intending to fill in a
vacancy by appointment, before doing so, it shall ascertain from the
Education Officer, whether there is any suitable person available on
the list of surplus persons maintained by the Education Officer, for
absorption in other schools and in case of such person being
available, to appoint such person in such vacancy. The purpose
behind this is obvious, to continue the employment of a person, who
was already appointed by following the due process of law. This is an
obligation, obviously upon the management and not upon the
person who is appointed after due selection in a clear vacant post,
and thus such appointee cannot be penalised due to the default on
part of the Management in this regard, more so, when such
appointee, has been permitted to continue in employment for years
together. That apart there is nothing on record to indicate that there
was any failure on part of the petitioner/Management in regard to
the requirement of the proviso to Section 5(1) of the MEPS Act and
that the Education Officer on this count had initiated any action
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against the petitioner/Management. Had there been any such a
failure, the Education Department would not have permitted the
continuation of the respondent no.3, in all the petitions for years
together. Vasant Shikshan Prasarak Mandal (supra) relied upon by
Shri Bhuibhar, learned Counsel for the petitioners, therefore on facts
would not be attracted. Chandrashekhar Anandraoji Rewatkar
(supra) has been set aside by the Hon'ble Apex Court in SLP
No.842-843 of 2017 decided on 23/1/2017 and is of no assistance
to Shri Bhuibhar, learned Counsel for the petitioners.
19. The contention that the Managing Committee, which
appointed the respondent no.3, in all these petitions, was declared
as illegal by the learned Joint Charity Commissioner, Amravati, in
Appeal No.3/2010 and Appeal No.4/2010, by the judgment dated
13/12/2011, has to be viewed in the context of the background in
which it was passed. The Managing Committee which appointed the
respondent no.3, in all these petitions, initially by the appointment
orders dated 1/2/2008 and 2/2/2009, which were continued
thereafter, from time to time, with formal orders of termination,
after each session, claimed that it was elected in the meeting held on
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3/12/2006. A change report filed under Section 22 of the
Maharashtra Public Trusts Act, for recording this change vide
Enquiry No.135/2007, was accepted by the Incharge Deputy Charity
Commissioner, Amravati, vide his judgment dated 7/12/2009.
Appeal filed against this judgment was allowed on 13/12/2011,
which thereafter was carried up to the Hon'ble Apex Court, which is
said to have maintained the judgment in appeal. There is however,
no order placed on record, which would indicate that there was any
restraint upon the Managing Committee which had appointed the
respondent no.3, in all these petitions, to do so, in view of which the
appointment of the respondent no.3, in all these petitions cannot be
faulted with.
20. In Phool Chand (supra) relied upon by Shri Bhuibhar,
learned Counsel for the petitioners, after considering Deepali Gundu
Surwase (supra) relied upon by Shri Kadu, learned Counsel for the
respondent no.3, the Hon'ble Apex Court has held as under :
"11. In our considered opinion, the courts below completely
failed to see that the back wages could not be awarded by the
Court as of right to the workman consequent upon setting aside
of his dismissal/termination order. In other words, a workman
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has no right to claim back wages from his employer as of right
only because the Court has set aside his dismissal order in his
favour and directed his reinstatement in service.
12. It is necessary for the workman in such cases to plead and
prove with the aid of evidence that after his dismissal from the
service, he was not gainfully employed anywhere and had no
earning to maintain himself or/and his family. The employer is
also entitled to prove it otherwise against the employee, namely,
that the employee was gainfully employed during the relevant
period and hence not entitled to claim any back wages. Initial
burden is, however, on the employee.
13. In some cases, the Court may decline to award the back
wages in its entirety whereas in some cases, it may award
partial, depending upon the facts of each case by exercising its
judicial discretion in the light of the facts and evidence. The
questions, how the back wages are required to be decided, what
are the factors to be taken into consideration awarding back
wages, on whom the initial burden lies, etc. were elaborately
discussed in several cases by this Court wherein the law on
these questions has been settled. Indeed, it is no longer res
integra. These cases are, M.P. SEB v. Jarina Bee [M.P. SEB v.
Jarina Bee, (2003) 6 SCC 141 : 2003 SCC (L&S) 833],Haryana
Roadways v. Rudhan Singh [Haryana Roadways v. Rudhan
Singh, (2005) 5 SCC 591 : 2005 SCC (L&S) 716] ,U.P. State
Brassware Corpn. Ltd. v. Uday NarainPandey [U.P. State
Brassware Corpn. Ltd. v. Uday Narain Pandey, (2006) 1 SCC
479 : 2006 SCC (L&S) 250],J.K. Synthetics Ltd. v. K.P. Agrawal
[J.K. Synthetics Ltd. v. K.P. Agrawal, (2007) 2 SCC 433 : (2007)
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1 SCC (L&S) 651] ,Metropolitan Transport Corpn. v. V.
Venkatesan [Metropolitan Transport Corpn. v. V. Venkatesan,
(2009) 9 SCC 601 : (2009) 2 SCC (L&S) 719] , Jagbir Singh v.
Haryana State Agriculture Mktg. Board [Jagbir Singh v. Haryana
State Agriculture Mktg. Board, (2009) 15 SCC 327 : (2010) 1
SCC (L&S) 545] and Deepali Gundu Surwase v. Kranti Junior
Adhyapak Mahavidyalaya [Deepali Gundu Surwase v. Kranti
Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324 : (2014)
2 SCC (L&S) 184] .
14. The Court is, therefore, required to keep in consideration
several factors, which are set out in the aforementioned cases,
and then to record a finding as to whether it is a fit case for
award of the back wages and, if so, to what extent."
In Allahabad Bank and others Vs. Krishan Pal Singh, Civil Appeal
No.5808/2021 [arising out of SLP (C) No.19648 of 2019], decided
by the Hon'ble Apex Court on 20/9/2021, it has been held that
reinstatement with full back wages is not automatic in every case,
where termination/dismissal is found to be not in accordance with
procedure prescribed under law and in circumstances it would be
permissible to award compensation instead.
The Learned School Tribunal, has while narrating the
averments in the Application under Section 9 in the impugned
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judgment, has not made any mention regarding the pleas contained
therein regarding the claim for entitlement for back wages. The
impugned judgment/s also do not speak of any such averment by the
respondent no.3, much less anything on record, so as to enable the
learned School Tribunal to have arrived at the conclusion that while
directing reinstatement, full back wages were to be awarded. There
is absolutely no discussion whatsoever in the impugned judgment/s
in this regard. Full back wages have been awarded merely for the
asking, which clearly would not be permissible in view of what has
been said in Phool Chand (supra) and Allahabad Bank (supra),
considering which the grant of back wages by the learned School
Tribunal cannot be sustained.
21. In so far as the Format in Schedule-D is concerned, a
Format in itself does not confer any right whatsoever, and is only a
method in which the requirement can be depicted/solicited, and
digression from a Format would not mean denial of a right conferred
by Statute or accruing to a person, due to his selection.
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22. As regards the contention of Shri Bhuibhar, learned
Counsel for the petitioners, that the learned School Tribunal ought
to have exercised the powers under Section 11(2)(e) of the MEPS
Act and awarded compensation instead of reinstatement by relying
on Arvind Narayan Lajurkar (supra), it is necessary to note that
Arvind Narayan Lajurkar (supra) was a case in which while directing
compensation instead of reinstatement, what weighed with the
Court was that there were series of complaints against the teacher,
whose services were terminated, regarding his unruly and abusive
behaviour in the school and the charges as levelled against the
employee in this regard were also proved, the termination being set
aside on account of not granting an opportunity to cross-examine the
witnesses, and the Tribunal, instead of directing holding of a de
novo enquiry, had directed reinstatement. In the instant case there is
no such unruly or abusive behaviour alleged against the respondent
no.3 in all these petitions and there was no enquiry conducted, on
account of which the case is clearly distinguishable on facts. That
apart, Section 11(2)(e) of the MEPS Act, would only be attracted
where the learned School Tribunal, comes to a conclusion not to
reinstate an employee, in which case the question of granting any
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compensation can be considered, so as to compensate the employee
on account of loss of employment and possibility of getting or not
getting suitable employment, which is not the case in the present
matter as the learned School Tribunal, has directed reinstatement,
which as indicated above, is being upheld by this Court.
23. In the result, the petitions are partly allowed. The
direction of the learned School Tribunal granting back wages in all
the impugned judgments, is hereby quashed and set aside. Rest of
the judgment is maintained. Rule is made absolute in the above
terms. No order as to costs.
(AVINASH G. GHAROTE, J.)
Wadkar
