Bombay High Court
Yug Pravartak Seva Mandal, Neri ... vs Sambha S/O Vithobaji Pise And ... on 2 May, 2023
Bench: Avinash G. Gharote
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.1238/2021
PETITIONERS: 1. Yug Pravartak Seva Mandal
Neri, Tahsil, Chimur, District :
Chandrapur, through its General
Secretary namely Rushidev Gopalrao Pise,
Aged : 45 years.
2. Lok Vidyalaya, Neri,
Tahsil : Chimur, District : Chandrapur
through its Head Master : Ishwar Kashinath
Randaye : Aged 52 years.
...VERSUS...
RESPONDENTS: 1. Shri Sambha s/o Vithobaji Pise
aged about : 54 years, Occupation :
Service, Resident of Netaji Ward,
Neri, Tahsil : Chimur Distsrict Chandrapur.
2. The Presiding Officer,
Additional School Tribunal,
Chandrapur.
3. The Education Officer
(Secondary) Zilla Parishad
Tahsil and District : Chandrapur.
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Mr. S.P. Bhandarkar, Advocate for petitioners
Mr. A.Z. Jibhkate, Advocate with Shri A.B. Tikle, Advocate for respondent no.1
Mrs. M.A. Barabde, AGP for respondent nos.2 and 3
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CORAM : AVINASH G. GHAROTE, J.
Judgment reserved on : 11/04/2023
Judgment pronounced on : 02/05/2023
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1. Heard Mr. S.P. Bhandarkar, learned counsel for the
petitioners, Mr. A.Z. Jibhkate, learned counsel for the respondent
no.1 and Mrs. M.A. Barabde, learned Assistant Government Pleader
for the respondent nos.2 and 3. Rule. Rule made returnable
forthwith. Heard finally with the consent learned counsels for the
rival parties.
2. The petition challenges the judgment dated 06/02/2020
passed by the learned School Tribunal Chandrapur in STC Appeal
No.14/2017 filed by the respondent no.1 whereby the appeal filed
under Section 9 of the Maharashtra Employees of Private Schools
(Conditions of Service) Regulation Act, 1977 (for short, "the MEPS
Act", hereinafter) challenging the termination of the respondent no.1
by the order dated 02/05/2017 has been quashed and set aside and
the respondent no.1 has been directed to be reinstated on the post of
part-time librarian with continuity of service and full back wages
with all pecuniary benefits from the date of termination till
reinstatement and so also Rs.5,000/- as costs.
3. The facts giving rise to the present petition are as
under :
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(a) The petitioner/Trust runs a school in the name and style "Lok
Vidyalaya, Neri" in which classes from standard 5th to 12th are being
conducted. The school is recognised by the competent authority.
(b) There was a vacant and clear post of librarian in the school in
the year 1992 and the appellant having passed H.S.C. certificate
course in library science and typewriting examination and was
belonging to the caste Telgi, which is recognised as an OBC, being
duly qualified for the post of librarian applied to the petitioner, in
pursuance to which on an interview held by the school committee,
the appellant was selected for the post of librarian and an order was
issued on 06/07/1992, appointing the respondent no.1 as a
part-time librarian, on probation for a period of two years with effect
from 07/07/1992, on which date itself the respondent no.1 joined
duties.
(c) The proposal for approval sent to the Education Officer was
granted by an order dated 27/09/2000.
(d) On completion of the probation period, the respondent no.1,
was continued in service and has rendered 25 years service.
(e) The employees of the school run by the petitioner had formed
a society under the Maharashtra Cooperative Societies Act named as
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Lok Vidyalaya, Bahuuddeshiya Karamchari Sahakari Pat Sastha, Neri
in which the respondent no.1, was appointed as a clerk to write a
record of the society on an honorarium of Rs.1100/- per month. The
accounts of the society were audited and there was no audit
objection. The society had issued a letter on 24/09/2014, claiming
that during the internal audit of the society for the period from
01/04/2002 to 31/03/2011 there were deficiencies pointed out in
the audit report on the basis of which it was alleged that the
respondent no.1 had caused a loss to the society to the tune of
Rs.3,97,693/-.
(f) The subsequent action on part of the aforesaid society in
claiming amounts from the respondent no.1, is challenged before the
Cooperative Court in Dispute No.575/2014, in which, by an order
dated 27/01/2015, status quo is directed to be maintained.
(g) It is also stated that the said Sanstha, has thereafter lodged
an FIR against the respondent no.1, as a result of which, the
respondent no.1 was arrested on 17/04/2017 and was released on
bail on 21/04/2017, as a result of which, the petitioner applied for
permission from the Education Officer to suspend the respondent
no.1 on 18/04/2017, which was granted on 04/05/2017, however,
the respondent no.1 was not suspended.
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(h) The services of the respondent no.1 came to be terminated by
the petitioner by an order dated 02/05/2017, which as indicated
above, came to be quashed and set aside, resulting in filing of the
present petition.
4. Mr. S.P. Bhandarkar, learned counsel for the petitioners
submits that the findings rendered by the learned School Tribunal
are factually incorrect, as there was no permanent post of librarian
and therefore the finding rendered by the learned School Tribunal
that the appointment of the respondent no.1, was made in
accordance with Section 5 of the MEPS Act and the Rules framed
thereunder was legally and factually infirm.
5. It is also contended, that it was impermissible for
anyone to be appointed as a part-time librarian and the fact that the
respondent no.1 claims to have been so appointed clearly militates
against the aforesaid finding. It is also contended that there was no
permanent substantive post available, and therefore the
appointment of the respondent no.1 which was without any
advertisement was clearly untenable being in contravention to the
provisions of Section 5 of the MEPS Act and the Rules framed
thereunder. It is therefore contended that the impugned judgment is
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liable to be quashed and set aside. Reliance is placed upon the
following judgments.:
(i) Priyadarshani Education Trust and others Vs. Ratis
(Rafia) Bano d/o Abdul Rasheed and others 2007 (6) Mh.L.J. 667
(paras 8, 9, 12 and 16) ;
(ii) Sanjay Gandhi Shikshan Prasarak Mandal through its
President Vs. Deputy Director of Education and another 2022 SCC
OnLine 1111 (paras 26) ;
(iii) Chandramani Devraj Tiwari Vs. Secretary Smt. R.B.
Tiwari Sanskrutik Kendra and others 2008 (3) Mh.L.J. 274 (para 12);
(iv) Narendra Keshaorao Meshram Vs. Presiding Officer,
School Tribunal, Nagpur and other 2014 (3) Mh.L.J. 881 (para 6 and
8);
(v) Abdul Rafique Abdul Hamid Vs. Yavatmal Islamia Anglo
Urdu Education Society and others 2014 (3) Mh.L.J. 99 (para 22) ;
(vi) Jamdar High School Education Society, Nagpur Vs. Sunil
Wasudeorao Bhoyar and another 2009 (6) Mh.L.J. 678 (para5) and
(vii) Mathuradas Mohta College of Science, Nagpur Vs. R.T.
Borkar 1997 (2) Mh.L.J. 168 (paras 6 and 8).
(viii) Navin Osmanabad Zilla Balvikas Samity, Osmanabad
through its Secretary and another Vs. Pramod Trimbakrao Pawar and
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another (Aurangabad Bench) (Writ Petition No.4394/2016 Decided
on 06/10/2016)
(ix) Sudhakar Balaji Motghare Vs. Adarsha Mahila Mandal,
Bhandara through its President and others (Nagpur Bench) (Letters
Patent Appeal No.241/2013 in W.P. No.3619/2012 (D) Decided on
04/10/2013).
6. Mr. A.Z. Jibhkate, learned counsel for the respondent
no.1, supports the impugned judgment contending that the staffing
pattern indicated the existence of a permanent and vacant post to
which the respondent no.1, was duly appointed after following due
procedure of law. Further placing reliance upon the Secondary
School Code, namely 'Schedule A', it is contended that clause (m)
thereof permits appointment of a part-time librarian and therefore
the contention raised in this regard is clearly untenable. Further,
relying upon the definition of employee as contained in Section 2 (7)
of the MEPS Act, it is also submitted that the definition would
include a part-time employee as it is an inclusive definition and not
an exclusive one. It is also contended that the filing of the criminal
proceedings against the respondent no.1, has no bearing whatsoever
upon the question of illegal termination which has rightly been
decided by the learned School Tribunal as the appointment of the
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respondent no.1, was after the following due procedure of law. It is
also contended that the appointment of the respondent no.1, was
initially on probation and after successfully completing the
probation, the respondent no.1, acquired the status of a confirmed/
permanent employee and therefore the termination of his services
after a period of 25 years cannot be countenanced. In support of his
contention, Mr. Jibhkate, learned counsel for the respondent no.1
relies upon Nagpur Shikshan Mandal and another Vs. Varsha Vinod
Sayam and another, 2014 (5) Mh.L.J. 550.
7. Insofar as the plea regarding the appointment of the
respondent no.1 not being in consonance with the provisions of
Section 5 of the MEPS Act and the Rules framed thereunder, it is
necessary to note that the present petitioners in the petition itself in
paras 2 have made the following averments :
"2. The petitioners further most respectfully submit that, the
respondent no.1 came to be appointed as a Part Time Librarian on
06.07.1992 after following due process contemplated under the
Maharashtra Employees of Private School (Conditions of Service)
Regulation Act, 1977 and the Rules framed thereunder
(hereinafter referred to as the MEPS Act, 1977 for the sake of
brevity). A copy of the Appointment Order dated 06.07.1992 is
annexed herewith and marked as ANNEXURE-A to the petition for
the ready reference and kind perusal of this Hon'ble Court."
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8. In view of the above admission, the contention that the
appointment of the respondent no.1, is without following due
process of law as contemplated by the provisions of Section 5 of the
MEPS Act and the Rules as framed thereunder is clearly untenable.
The appointment order of the respondent no.1, dated 06/07/1992
placed on record at Annexure-A (pg.22) would indicate that the
appointment of the petitioner was w.e.f. 07/07/1992 as a part-time
librarian on probation for a period of two years commencing from
07/07/1992. The petitioners themselves have relied upon this
appointment order and therefore are bound by it. Thus, when the
appointment order dated 06/07/1992 itself speaks about the
respondent no.1, having been appointed on a probation period of
two years, on completion of the period of probation the services of
the respondent no.1, stood confirmed, in view of Section 5 (2) of the
MEPS Act. It is also necessary to note that the appointment of the
respondent no.1, has also been granted approval by the Education
Officer vide his order dated, 27/09/2000, w.e.f. 04/07/1993 until
further orders. It is also not the case of the petitioners, that the
respondent no.1, was not qualified to be appointed to the post of
librarian. In view of this position, the finding that the respondent
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no.1, was appointed after following due process of law; the
appointment was on probation; the probation period was
successfully completed, which resulted into permanency being
accorded to the employment of the respondent no.1, is clearly a
position which is spelt out from the material on record and is well
justified.
9. The lodging of the FIR against the respondent no.1,
cannot be said to be of any consequence in relation to the
termination of the services of the respondent no.1, inasmuch as any
termination of the services of the respondent no.1, which attained
the status of permanency, could only be done after following due
process of law, as contemplated under the provisions of the MEPS
Act and the Rules framed thereunder and not otherwise.
10. No doubt Priyadarshani Education Trust ; Sanjay Gandhi
Shikshan Prasarak Mandal; Chandramani Devraj Tiwari ; Narendra
Keshaorao Meshram ; Sudhakar Balaji Motghare and Mathuradas
Mohta College of Science, Nagpur (supra) all speak about the
requirement of Section 5 of the MEPS Act being complied with in the
matter of appointment of an employee, which position cannot be
disputed. However, on facts in the instant case, as occurring in
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para 2 of the petition, as quoted in para 7 (supra), since the
petitioners themselves admit that the appointment of the respondent
no.1 on 06/07/1992 was after following due process as
contemplated under the MEPS Act and the Rules framed thereunder,
in my considered opinion, the finding in this regard, rendered by the
learned Tribunal, which is based upon this specific and categorical
admission on part of the petitioners cannot be faulted with. Though
Abdul Rafique Abdul Hamid (supra) speaks about the burden to
establish this position, however, in view of the aforesaid admission
by the petitioners themselves, the burden can surely said to be
discharged. In Jamdar High School Education Society, Nagpur
(supra) the question under consideration was whether the
appointment of a teacher on clock hour basis by paying honorarium
could be said to be an appointment entitling the teacher concerned
to confirmation under Section 5 of the MEPS Act, which was
answered in the negative, which again is not attracted in view of the
admission of the petitioners, as quoted above. Navin Osmanabad
Zilla Balvikas Samity, Osmanabad (supra), in my considered opinion,
does not have any bearing upon the matter in issue altogether.
11. It is also material to note that the respondent no.1 was
appointed as a part-time librarian, which was a non-teaching post,
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and therefore, in view of Rule 9 (3) of the Maharashtra Employees
of Private Schools (Conditions of Service) Rules, 1981, it was
enough that an application was made by him for appointment,
which was so made on 04/07/1992 was scrutinized by the
petitioners, resulting in the issuance of the appointment order dated
06/07/1992 (pg.22) in favour of the respondent no.1. The MEPS Act
merely contemplates, a post of librarian and prescribes his
qualification in Table-IV Item-5 of Schedule-B under the
Maharashtra Employees of Private Schools (Conditions of Service)
Rules and does not prohibit the part-time librarian being appointed.
Even the definition of "employee" as occurring in Section 2 (7) of
the MEPS Act would indicate that it is an inclusive definition and
includes any member of the non-teaching staff, without any
distinction, being made upon the nature and tenure of the
appointment. Even otherwise, the contention in this regard is clearly
fallacious on account of the fact that the respondent no.1 has been
continued for the last 25 years in his post as a librarian without any
demur from the petitioners and therefore the petitioners are now
estopped from contending otherwise.
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12. The petitioners, have also not placed any other material
on record, to indicate, that there was no requirement of librarian at
all, considering the strength of the students in the school, which
material was exclusively in possession of the petitioners.
13. Insofar as the plea regarding back wages is concerned,
in the appeal under Section 9 of the MEPS Act itself, the respondent
no.1 has made a categorical statement in para 16 (pg.85) that from
the date of termination the respondent no.1 has not been gainfully
employed anywhere, which statement is continued in his affidavit at
Exh.25. No material has been brought on record by the petitioners,
to indicate otherwise, regarding the gainful employment of the
respondent no.1 anywhere during the aforesaid duration and so also
no material has been placed on record by the petitioners in light of
what has been contemplated by the Hon'ble Apex Court in para 38.2
of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak
Mahavidyalaya (D.Ed.) and others (2013) 10 SCC 324 so as to bring
on record the factors to take a different view on the point of back
wages.
14. In view of the above discussion, I do not see any reason
to interfere in the impugned judgment passed by the learned School
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Tribunal directing reinstatement and continuity in services. The writ
petition is dismissed. Rule stands discharged. No order as to costs.
(AVINASH G. GHAROTE, J.)
Wadkar
