Bombay High Court
Smt. Nathibai Damodar Thakarsey Womens ... vs Miss. Smita Goivnd Takale And Anr on 7 May, 2024
Author: Gauri Godse
Bench: Gauri Godse
2024:BHC-AS:21286
902-WP-10737-2019-WP-10645-2019.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
rrpillai CIVIL WRIT PETITION NO. 10737 OF 2019
1. Shreemati Nathibai Damodar
Thakarsey Women's University (SNDTU),
1,Nathibai Thackersey Road,
New Marine Lines, Mumbai-400020.
Through the Vice Chancellor
2. The Registrar
Shreemati Nathibai Damodar
Thakarsey Women's University (SNDTU),
1,Nathibai Thackersey Road,
New Marine Lines, Mumbai-400020.
Through the Vice Chancellor
3. The Principal
SNDT Arts & Commerce Junior College
For Women, Karve Road, Pune-411038 ..... Petitioners
Versus
1. Miss Smita Govind Takale
Age - About 41 years
R/At C-2, Amar Classic, Hadapsar,
Pune-411038
1/33
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2. The Deputy Director of Education
Pune Division
Pune-411001 .....Respondents
WITH
WRIT PETITION NO. 10645 OF 2019
1. Shreemati Nathibai Damodar
Thakarsey Women's University (SNDTU),
1,Nathibai Thackersey Road,
New Marine Lines, Mumbai-400020.
Through the Vice Chancellor
2. The Registrar
Shreemati Nathibai Damodar
Thakarsey Women's University (SNDTU),
1,Nathibai Thackersey Road,
New Marine Lines, Mumbai-400020.
Through the Vice Chancellor
3. The Principal
SNDT Arts & Commerce Junior College
For Women, Karve Road, Pune-411038 ..... Petitioners
Versus
1. Miss Aruna Manohar Dhanavade
2/33
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Age - About 41 years
R/At Mauli 72, Sheela Vihar Colony
Paud Road, Pune-411038
2. The Deputy Director of Education
Pune Division
Pune-411001 .....Respondents
Mr. Ashwin Thool a/w. Mr.Jaymangal Dhanraj, Ms.Disha Vardhan for
the petitioner in both the Petitions.
Mr. Suryajeet P. Chavan for the Respondent No. 1 in both the
Petitions.
Ms. Vaishali Nimbalkar, AGP for respondent no. 2 - State in both the
Petitions.
CORAM : GAURI GODSE, JJ.
RESERVED ON : 22 nd JANUARY 2024
FURTHER HEARING ON : 23rd APRIL 2024 &
2 nd MAY 2024
PRONOUNCED ON : 7 th MAY 2024
JUDGMENT:
1. After the arguments were concluded in the petitions and
judgment was reserved, I came across the decision of the Hon'ble
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Supreme Court in the case of Chhatrapati Shivaji Shikshan
Prasarak Mandal v. Dattatraya Rupa Pagar 1. The legal principles
laid down in the said decision would have a direct bearing on the
outcome of the petitions. Since the said decision was not cited at the
time of arguments, the petitions were listed on 23 rd April 2024 to
enable the parties to make their submissions. Learned counsel for
the respective parties made further submissions on 2 nd May 2024
and concluded their arguments.
2. Both the aforesaid Writ Petitions are filed by the original
opponent ("management") for challenging the Judgment and Order
passed by the School Tribunal, allowing the appeals filed by both the
respondents ("teachers") for challenging their termination. The
School Tribunal allowed the appeals, declaring the termination of
petitioners as illegal and directing the management to reinstate the
respondents with back wages.
3. Learned counsel for the management pointed out the brief
facts of both petitions as under :
(2012) 13 SCC 534
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Respondent No. 1 in Writ Petition No. 10737 of 2019 ("Smita")
was initially appointed as a part-time Shikshan Sevak on a
temporary basis for the period from 11 th June 2007 to 30th April
2008. She was given breaks in service during summer
vacations after every appointment and continued in service.
Pursuant to the post rendered vacant in view of the retirement
of a teacher, i.e. Dr.Jyoti Telang, an advertisement was
published on 14th September 2011 for appointing a full-time
Shikshan Sevak.
Smt. Vandana Patil was appointed pursuant to the said
advertisement; hence, Smita preferred an appeal before the
Deputy Director of Education/Respondent No. 2, challenging
the appointment of Vandana Patil.
On 14th June 2014, Smita was communicated regarding her
termination on 14th June 2014 with effect from 16th June 2014.
On 30th September 2014, the Deputy Director of Education
passed an order directing the management to appoint Smita as
a full-time teacher of Economics.
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Vandana Patil challenged the said order by filing a writ petition
in this Court, on the ground that the order passed by the
Deputy Director of Education was without jurisdiction. Hence,
this Court stayed the directions issued by the Deputy Director
of Education.
Smita filed an appeal before the school tribunal challenging her
termination with effect from 16 th June 2014. The appeal was
allowed, and Smita was directed to be reinstated with back
wages. Hence, the management filed the Writ Petition No.
10737 of 2019.
Respondent No. 1 in Writ Petition No. 10645 of 2019 ("Aruna")
was appointed as a clerk on a temporary basis for the period
from 9th August 2010 to 8th June 2011.
Subsequently, Aruna was appointed as a teacher on a
temporary basis for the period from 8 th June 2011 to 31st
December 2011 on Clock Hour Basis ("CHB").
Aruna was thereafter again appointed as a clerk on a
temporary basis for the period from 1st February 2012 to 30th
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April 2012. Thereafter, Aruna was appointed as a teacher on a
temporary basis for the period from 15 th June 2012 to 30th April
2013 on CHB.
Aruna was again appointed as a teacher on a temporary basis
for the period from 17th June 2013 to 30th April 2014 again on
CHB.
On 30th June 2013, the post of Assistant Teacher was rendered
vacant as Vishwanath Sathe opted for voluntary retirement.
Aruna's last appointment was from 17 th June 2013 to 30th April
2014.
A newspaper advertisement was published on 23 rd June 2015
for the appointment of full-time Shikshan Sevaks for different
subjects. Aruna applied pursuant to the advertisement and also
appeared for the written tests. The selection committee
conducted interviews on 26th May 2015; however, Aruna was
not selected.
The Deputy Director of Education passed an order on 15 th July
2015 directing the management to reinstate Aruna. According
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to the management the said order was without jurisdiction.
On 4th May 2017, Aruna filed an appeal before the School
Tribunal to challenge her otherwise termination with effect from
14th June 2014. Since there was a delay in filing the appeal, an
application for condonation of delay was also preferred, and
the same was allowed.
The appeal was allowed, and Aruna was directed to be
reinstated with back wages. Hence, the management filed the
Writ Petition No. 10645 of 2019.
SUBMISSIONS ON BEHALF OF THE PETITIONERS:
4. In both the aforesaid appeals under Section 9 of The
Maharashtra Employees of Private Schools (Conditions of Service)
Regulation Act, 1977 ("MEPS Act") the petitioners appeared and
filed their reply and opposed the reliefs claimed by Smita and Aruna
in their respective appeals. The petitioners denied the contention of
Smita and Aruna that they were appointed on clear vacant posts. It
was contended that their appointments were on an adhoc basis and
without following any procedure. The petitioners contended that the
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particulars of the appointment letter clearly showed that both the
aforesaid appointments were temporary and on an adhoc basis. It
was thus denied that Smita and Aruna were appointed as full-time
teachers by following the procedure for appointment of Assistant
Teacher on a full-time permanent basis.
5. It was further contended that Smita and Aruna had participated
in the selection process pursuant to the advertisement; however,
they were not selected. Hence, Smita and Aruna were not entitled to
claim the benefit of deemed permanency.
6. The petitioners further denied the contention of Smita and
Aruna that they were entitled to deemed permanency. The
petitioners specifically contended that appointment of Smita and
Aruna was on CHB for a temporary period. It was contended that the
workload assigned to Smita and Aruna was not of a part-time
teacher and thus approvals by the education departments regarding
the appointments of Smita and Aruna were also on CHB. Thus, their
appointment was never on a regular basis, which could entitle them
to claim permanency.
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7. The School Tribunal, after considering the contentions raised
on behalf of both parties, held that the services of Smita and Aruna
were illegally terminated. The School Tribunal held that at the
relevant time, there was a clear and permanent vacancy in the case
of Smita, and hence, the workload assigned to Smita and the period
of her appointment showed that she was appointed on a clear and
permanent vacancy available with the petitioners.
8. The Tribunal further held that Smita had worked with the
petitioners for a considerable period, and hence, the petitioners
cannot terminate her services on the ground that her appointment
was not done by following procedure. In the case of Smita, the
Tribunal held that her first appointment was issued on 11 th June 2007
and later on, she was appointed on a year to year basis; hence,
there was no dispute between the parties that appointments were
only on a temporary basis. The contention of the petitioners that the
appointment orders were not issued by the management after
following due procedure and that the same were only issued by the
Principal was not accepted by the Tribunal by holding that the
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principal was authorized to appoint Smita for a specific period.
Hence, it was held that, if it is presumed that the appointment was
irregular; her services would not have been continued by the
management.
9. Thus, in the case of Smita tribunal came to the conclusion that
the ratio laid down by this court in the case of Balasaheb
Ramchandra Burke and Others vs. The President and others 2
was squarely applicable to her case. It was thus held that Smita was
appointed on a year to year basis by issuing consecutive orders, and
hence the petitioners were not entitled to raise objection that the
appointments were not made after following due procedure.
10. In the case of Smita, the Tribunal further held that the record
indicated that the workload given to Smita was of a part-time teacher
and not on CHB. The Tribunal further held that once it was
established that she was appointed on clear vacant and permanent
post, the petitioners were required to follow the procedure laid down
under Maharashtra Employees of Private Schools (Conditions of
Service) Rules, 1981 ("MEPS Rules") for terminating the services of
BCR-2016(3)197
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Smita. Hence, the Tribunal held that the termination of Smita was
illegal. Thus, the Tribunal allowed the appeal by holding that Smita
had acquired the status of deemed permanency in the post of Full-
Time Assistant Teacher. She was allotted the workload of a Full-
Time Teacher. Thus, it was held that once her appointment was held
to be illegal, Smita was entitled to back wages from the date of filing
the delay condonation application in filing an appeal before the
Tribunal.
11. So far as the case of Aruna is concerned, the Tribunal held that
she was issued appointment orders on year to year basis on clear,
vacant and permanent posts. It was held that after the retirement of
Mr. Vishwanath Sathe, an Assistant Teacher who was a Full-Time
teacher, the workload of the said teacher was handed over to Aruna.
Hence, the management had initiated the procedure for appointment
by issuing an advertisement, which was a mere formality, and though
Aruna had participated in the said procedure, she was not given an
appointment for the permanent post. Thus, the Tribunal held that at
the relevant time when Aruna was appointed there was a clear
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vacancy and hence the consecutive appointments issued in favour of
Aruna indicated that she was entitled to deemed permanency.
12. The Tribunal further relied upon the decision of this Court in the
case of Balasaheb Burke, holding that in view of the orders
appointing Aruna on a year to year basis, the petitioners were not
entitled to contend that the appointment of Aruna was not after
following the due procedure. Even in the case of Aruna, the Tribunal
held that records indicated she was given the workload of Full-Time
Teacher, though approval of her appointment was shown as on CHB.
Hence, the Tribunal rejected the contention of the petitioners that
Aruna was appointed on CHB only on a temporary post. Thus, it was
held that Aruna was entitled to deemed permanency. The petitioners
could not have terminated her services without following due
procedure. Hence, it was held that Aruna was entitled to
reinstatement and also back wages from the date of filing the delay
condonation application before the Tribunal, i.e. on 4 th May 2017.
13. Learned counsel for the petitioners submitted that for claiming
deemed permanency the appointments to the posts of Shikshan
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Sevaks as claimed by both the aforesaid teachers is required to be
done in view of the Government Resolution dated 13 th October 2000
and has to be done in terms of Section 5 of the MEPS Act read with
Rule 9 of the MEPS Rules. He submitted that in the present case
procedure under Section 5 of the MEPS Act read with MEPS Rules
is not followed; hence appointment of both teachers would be
covered by the terms of appointment as temporary Shikshan Sevak.
14. In view of Rule 10 of MEPS Rules, the appointment of both
teachers is on a temporary basis. In terms of Rule 10(1) and Rule
10(2), it is clear that both teachers were appointed on a temporary
basis to fill a temporary vacancy and for a fixed period. He thus
submitted that both the teachers were not entitled to claim deemed
permanency as their appointments were not made in terms of the
procedure prescribed under Section 5 of the MEPS Act read with
Rule 9 of the MEPS Rules.
15. In support of his submissions, learned counsel for the
petitioners relied upon decision of the Hon'ble Full Bench of this
court in the case of Ramkrishna Chauhan vs. Seth D.M.High
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School and Others3 and submitted that if a teacher is not been able
to satisfy that the appointment is by following due process of due
selection, the teacher is not entitled to claim deemed permanency.
He, in particular, relied upon paragraphs 24, 26 and 28 of the said
decision in support of his submission that sub-section (2) of Section
5 of the MEPS Act is only an enabling provision that, if management
intends to fill up a permanent vacancy has to appoint a person duly
qualified on probation for a period of two years.
16. He further relied upon the proposition of law laid down in the
decision of the Full Bench that sub-section (2) of Section 5 cannot be
construed as a deeming provision or a legal fiction to treat every
appointment made against a permanent vacancy to be on probation.
He thus submitted that as held by this court in the decision of the Full
Bench the deeming provision or legal fiction applies to a person who
has been appointed on probation and completes the probation
period of two years and that the second part of the said sub-section
cannot come to the aid of an employee who was in fact appointed on
purely temporary basis for a limited period. He submitted that in
2013(2)Mh.L.J.713
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paragraph 19 of the said decision it is clarified that the question
under consideration before the Full Bench had no application to the
appointment of Shikshan Sevak. However, he submitted that the
proposition laid down in the said decision clearly provides that only
an employee appointed to a permanent vacant post by following due
procedure on probation can claim deemed permanency on
completion of probation period.
17. Learned counsel further relied upon the decision of this court in
the case of Priyadarshini Education Trust and Others vs. Ratis
(Rafia) Bano d/o. Abdul Rasheed and Others 4. He relied upon the
said decision in support of his submission that the case of Smita and
Aruna are not covered under the parameters of deemed permanency
or on probation. Learned counsel for the petitioners further relied
upon the decision of the Hon'ble Supreme Court in the case of
Pragati Mahila Samaj and Another vs. Arun S/o. Laxman
Zurmure and Others5. He submitted that the Hon'ble Supreme
Court, in the said decision, has held that once the initial appointment
is not against a permanent vacancy and that a teacher is not
2007(6)Mh.L.J.667
(2016) 9 SCC 255
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appointed by the management by following the procedure prescribed
under Section 5 of the MEPS Act, the teacher is not entitled to claim
deemed permanency.
18. Thus, the learned counsel for the petitioner submitted that
when the aforesaid teachers were not appointed to any permanent
vacancy by following due procedure, there was no question of any
illegal termination. He thus submitted that the appointment orders of
both teachers would show that their appointments were on a
temporary basis and for a fixed period. Hence, the Tribunal had no
jurisdiction under Section 11 to direct the petitioners to appoint the
teachers as permanent. He submitted that in absence of any record
showing that the said teachers were appointed on permanent
vacancy they are not entitled to deemed permanency. Hence, the
order passed by the Tribunal directing reinstatement in fact amounts
to directing the petitioners to appoint the said teachers on a
permanent basis.
19. He thus submitted that even an order directing payment of
back wages is illegal in the present case. He thus submitted that the
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impugned order in the case of both teachers being without
jurisdiction deserves to be quashed and set aside by allowing both
the petitions filed by the management.
SUBMISSIONS ON BEHALF OF THE RESPONDENT:
20. Learned counsel appearing for both the teachers submitted
that they were appointed on part-time basis and not on temporary
basis. He further submitted that the respondents were given
workload of full-time teachers. Therefore, as and when vacancy had
arisen the said teachers should have been given permanent
appointment. He submitted that first appointment in the case of
Smita, though indicated that appointment was for a fixed period,
Smita was continued in service by issuing subsequent orders.
However, in subsequent orders issued on 5 th June 2008, clause (5),
which provided for appointment for a period of three years as
Shikshan Sevak, was deleted. He submitted that since Smita was
not permitted to continue in service, a representation was filed
before the Deputy Director of Education, and by order dated 30 th
September 2014 Deputy Director of Education had directed the
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petitioners to appoint Smita as Full-Time Teacher for Economics. He
submitted that the said order was challenged by the petitioners by
filing a writ petition in this court. However, the said writ petition was
subsequently withdrawn. He submitted that thereafter last extension
was issued in favour of Smita on 17 th June 2013 for the academic
Year 2013-2014. However, Smita was not allowed to join services in
October 2014, and hence, by treating the same as otherwise
termination, Smita correctly filed an appeal before the Tribunal.
21. He thus submitted that Smita was working on a permanent
vacant post with the workload of a part-time Teacher, hence she was
entitled to deemed permanency. He submitted that once Smita was
entitled to deemed permanency her services cannot be terminated
without following due procedure under Rule 28 of the MEPS Rules.
Thus, it was submitted that in view of the order dated 30 th September
2014 Smita's appointment stood confirmed on permanent post.
Learned counsel thus submitted that though the appointment of
Smita was approved on CHB for 9 hours, she was given the
workload of a Full-Time Teacher. He thus submitted that Smita was
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entitled to deemed permanency.
22. Learned counsel for the teachers further submitted that even in
the case of Aruna, she was given consecutive orders after the expiry
of the period of the first appointment, and thus, she completed the
requirement to claim deemed permanency.
23. The learned counsel for the teachers submitted that the
decisions relied upon by the learned counsel for the petitioners
would not have any bearing on the present case as they were
entitled to deemed permanency as they were continued after expiry
of the fixed period in terms of the appointment order. With regard to
the decision of the Full Bench in the case of Ramkrishna Chauhan
is concerned, learned counsel for the teachers submitted that the
said decision does not deal with appointments as Shikshan Sevaks.
Hence, the proposition laid down in the said decision would not apply
to the facts of the present case.
24. Learned counsel for the teachers further submitted that the
perusal of the record would show that they were given the workload
of part-time teachers on permanent posts. Hence, once the post was
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rendered vacant and the teachers were already given the workload
of full-time teachers, they both were entitled to deemed permanency.
Thus, he submitted that the decisions relied upon by the learned
counsel for the petitioners would not affect the teachers' rights to
claim deemed permanency.
25. Learned AGP on written instructions submitted that the
appointments were approved only on a part-time basis and the
appointments of the said teachers were never approved on
permanent vacant posts.
CONSIDERATION OF SUBMISSIONS AND FINDINGS:
26. I have considered the submissions made by both parties and
perused the record. The GR dated 13 th October 2000, provides for
appointments as Shikshan Sevak. Annexure 'A' of the GR prescribes
the scheme for appointment as Shikshan Sevak. The scheme of the
GR provides that an appointment as Shikshan Sevak is to be made
for a period of three years. After completing three years of
satisfactory service as Shikshan Sevak, he will be eligible for
appointment as a teacher in the prescribed pay scale and the service
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already rendered by him will be considered for post-retiral benefits.
27. The Hon'ble Supreme Court in the case of Chhatrapati Shivaji
Shikshan Prasarak Mandal, while dealing with the claim of deemed
permanency of a teacher appointed as Shikshan Sevak held in
paragraphs 7 and 8 as under:
"7. We have heard the learned counsel for the parties and
perused the record. In our view, the order passed by the
Presiding Officer of the Tribunal was ex facie erroneous and
the High Court committed serious error by refusing to quash
the same. A reading of the terms and conditions embodied in
the letter dated 3-9-2002 issued by the Chairman of Appellant
1 shows that Respondent 1 was appointed for a fixed period
with a clear stipulation that he will not be treated on a par with
regular teachers or government employees and after
completing three years' satisfactory service as Shikshan
Sevak, he will be eligible for appointment as teacher in the
prescribed pay scale and the service already rendered by him
will be considered for post-retiral benefits. It is neither the
pleaded case of Respondent 1 nor has any document
been produced before this Court to show that Respondent
1 had been appointed as a teacher after regular selection
and he was appointed on probation. Therefore, the
Tribunal was clearly in error in holding that Respondent 1
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had been appointed on probation and on completion of
three years, he will be deemed to have been confirmed.
8. The service of Respondent 1 was terminated strictly in
accordance with the terms and conditions of his appointment.
Therefore, the issue of approval or non-approval of his
appointment by the Education Officer was inconsequential and
even if one of the reasons put forward by the appellants to
justify their action was legally unsustainable, the termination of
the service of Respondent 1 could not have been declared
illegal by relying upon the High Court's judgment in St. Ulai
High School v. Devendraprasad Jagannath Singh [(2007) 1
Mah LJ 597] ."
emphasis applied
28. Thus, as per the proposition of law laid down by the Hon'ble
Supreme Court in the case of Chhatrapati Shivaji Shikshan
Prasarak Mandal, Smita, who is admittedly appointed as Shikshan
Sevak, her appointment was for a fixed period with a clear stipulation
that she will not be treated on a par with regular teachers or
government employees and after completing three years satisfactory
service as Shikshan Sevak, she will be eligible for appointment as
teacher in the prescribed pay scale and the service already rendered
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by her will be considered for post-retiral benefits. Thus, without being
appointed as a teacher after regular selection and on probation, the
Tribunal was clearly in error in holding that Smita was deemed to
have been confirmed.
29. It was Smita's contention that she time and again made
representations to the management and also to the Education
Officer for her appointment as a full time teacher on a regular basis;
however, she was not given the appointment. In the process of
appointment on a regular basis through advertisement, Smita was
not selected. In the said process, when another candidate, Vandana
Patil, was selected, Smita made a representation before the Deputy
Director of Education, who directed management to appoint Smita.
However, in a writ petition filed by Vandana Patil, the said direction is
stayed. Thus, it is clear that Smita was never appointed on regular
basis as per the prescribed procedure under Section 5 of MEPS Act
read with Rule 9 of the MEPS Rules. Admittedly Smita's appointment
is as Shikshan Sevak. Thus, the case of Smita is squarely covered
by the proposition of law laid down by the Hon'ble Supreme Court in
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the case of Chhatrapati Shivaji Shikshan Prasarak Mandal.
Hence, the termination of Smita cannot be termed as illegal and she
is not entitled to reinstatement.
30. Aruna's appointment was temporary on CHB. She also
participated in the appointment process initiated through an
advertisement for filling up a vacant post after a teacher opted for
VRS. However, she was not selected. Her appointment was
approved on CHB. However, Aruna claimed to be working as a full
time teacher and claimed to have been given a full workload.
However, the record indicates that she was never appointed on a
clear vacancy by following the prescribed procedure under Section 5
of the MEPS Act, read with Rule 9 of the MEPS Rules. The Hon'ble
Full Bench of this Court, in the case of Ramkrishna Chauhan, held
that if an appointment is on a purely temporary basis, it cannot be
assumed that the appointment is on probation for claiming deemed
permanency by disregarding the terms and conditions of the
appointment letter. The Hon'ble Full Bench of this Court, in the case
of Ramkrishna Chauhan, held in paragraphs 24 and 28 as under;
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"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, 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
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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."
emphasis applied
31. Learned counsel for the teachers relied upon the decisions of
this court in the case of President, Mahila Mandal Sinnar and
Another vs. Sunita Bansidhar Patole 6 and Maulana Azad
Educational Trust and Others vs. Uzma Khanam Mirza Moin
Ullah Baig7. The aforesaid decisions are relied upon by the learned
counsel for the teachers in support of his contention that merely
because management chooses to issue appointment orders every
year, the appointment order of the teacher would no ipso facto be
termed as temporary appointment order.
2007 (2) Mh.L.J. 105
2016 (4) ALL MR 34
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32. Learned counsel relied upon paragraph 14 of the said decision
to support his contention that the appointments of both teachers are
as per sub-section (1) of Section 5 of the MEPS Act, and hence, they
are entitled to deemed permanency as per sub-section 4 of Section
5 of the MEPS Act. He thus submitted that this court, in the case of
President, Mahila Mandal Sinner, held that once it is clear that the
post wherein the teacher was appointed was a permanent vacancy
unless it is specifically disclosed, the appointment is meant to be
filled as per provisions of Section 5(1) of the MEPS Act. Thus, once
there is an appointment in accordance with the provisions of law
comprised under Section 5(1) and the candidates so appointed
complete a period of two years of service, the provisions of Section
5(2) are attracted.
33. The decision in the case of Maulana Azad Educational Trust
is relied upon in support of his contention that once a teacher has
been working continuously for two academic years, however, and is
appointed to a temporary post, such employee will stand to gain
advantage of Section 5(2) of the MEPS Act and will be deemed to
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have become permanent.
34. Learned counsel for the teachers submitted that this court in
the decision of the case of Shikshan Prasarak Mandal vs.
Presiding Officer, School Tribunal and Others 8 held that the
provisions such as deeming provision of Section 5(2) of the MEPS
Act cannot be overlooked which confers unfettered right on an
employee to claim permanency having fulfilled all the conditions
contemplated by the MEPS Act and the MEPS Rules framed
thereunder.
35. Learned counsel for the petitioners sought to distinguish the
aforesaid decisions. He submitted that the decision in the case of
President, Mahila Mandal Sinner is impliedly overruled by the
decision of the Full Bench in the case of Ramchandra Chauhan. He
submitted that the decision in the case of President, Mahila Mandal
Sinnar does not deal with the decision of the Hon'ble Supreme
Court in the case of Hindustan Education Society and Another
vs. SK Kaleem SK. Gulam Nabi and Others 9 which is relied upon
2005 (4) Mh. L.J.485
1997 (5) SCC 152
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by the Full Bench. He thus submitted that the teachers are not
entitled to claim any benefit based on the decision in the case of
President, Mahila Mandal, Sinnar and Maulana Azad Educational
Trust.
36. I have perused all these decisions. In the case of President,
Mahila Mandal Sinnar, admittedly, the teacher was duly selected
and appointed, however, the appointment order did not disclose that
it was meant for any fixed period and that it was temporary. Thus, in
such facts, this Court held that the appointment had to be considered
as in terms of Section 5(1) of the MEPS Act. In the present case
Aruna was not duly selected in any selection process. Her
appointment was temporary and for a fixed period. Her appointment
was approved on CHB. Smita was admittedly appointed as Shikshan
Sevak. Hence, the decision in the case of President Mahila Mandal
Sinnar is of no assistance in the present case.
37. Similarly, in the case of Maulana Azad Educational Trust,
also no appointment order was issued, and thus the teacher was not
officially communicated in writing that she had been selected and
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appointed temporarily and had no right of continuance. In the case of
Swati Patil, the appointment was as Shikshan Sevak. As recorded
hereinabove the legal principle regarding the appointment as
Shikshan Sevak is settled by the Hon'ble Supreme Court in the case
of Chhatrapati Shivaji Shikshan Prasarak Mandal. Hence, none
of the decisions relied upon by the learned counsel for the teachers
is of any assistance to the present case.
38. In the case of the Hindustan Education Society, the Hon'ble
Supreme Court has held that an appointment made purely on a
temporary basis and for a limited period cannot be considered a
permanent appointment.
39. The legal principles settled by the Hon'ble Supreme Court in
the case of Chhatrapati Shivaji Shikshan Prasarak Mandal are
squarely applicable to Smita's appointment as a Shikshan Sevak,
and thus, she is not entitled to claim permanency. The decision of
the Hon'ble Full Bench, in the case of Ramkrishna Chauhan, is
squarely applicable to the facts of both teachers. In the case of
Aruna, an appointment order is not produced on record. She was
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initially appointed as a clerk, then she was appointed as an assistant
teacher on a temporary basis for a limited period, and then again,
she was appointed as a clerk for some time. Thereafter, she was
again appointed as assistant teacher for a limited period on a
temporary basis. Her appointment was approved on CHB. Thus, it is
clear that she was never appointed after following the due
procedure. She accepted her approval on CHB and continued to
work on those terms and conditions. Hence, even Aruna cannot be
said to be entitled to claim permanency. Thus in view of the settled
legal principles in the decision of Hon'ble Supreme Court in the case
of Chhatrapati Shivaji Shikshan Prasarak Mandal and the
decision of the Hon'ble full bench of this Court in the case of
Ramkrishna Chauhan, the other decisions relied upon by the
learned counsel for the teachers are of no assistance in the present
case.
40. The School Tribunal failed to consider the legal principles
settled in the aforesaid decisions and disregarded the terms and
conditions of the appointment of both teachers. Thus, I find that the
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School Tribunal's judgment in both petitions cannot be sustained in
law.
41. Hence, for the reasons recorded above, both petitions are
allowed by passing the following order;
(i) The judgment and order dated 8 th April 2019 passed by the
School Tribunal, Pune, in Appeal No. 44 of 2017 is quashed
and set aside, and Appeal No. 44 of 2017 is dismissed.
(ii) The judgment and order dated 8 th April 2019 passed by the
School Tribunal, Pune, in Appeal No. 9 of 2018 is quashed and
set aside, and Appeal No. 9 of 2018 is dismissed.
(iii) Both the petitions are allowed in the above terms, with no order
as to costs.
[ GAURI GODSE, J.]
RAJESHWARI by RAJESHWARI
RAMESH Date:
PILLAI 2024.05.08
11:06:50 +0530
