in Respondent No.3-School on account of the School Tribunal
setting aside termination order of Respondent No.1, has filed the
present Petition challenging the judgment and order dated 7
June 2002 passed by the Presiding Officer, Additional School
Tribunal, Navi Mumbai (School Tribunal), in Appeal No.90 of
1999. By its order dated 7 June 2002, the School Tribunal has
set aside order of oral termination of Respondent No.1 directing
the management to reinstate him alongwith consequential
benefits and continuity, but without backwages.
2) Respondent No.2/Gramin Shikshan Sanstha runs and
operates English High School and Junior College at Majiwade,
District -Thane. Respondent No.1 was appointed as temporary
Assistant Teacher by order dated 27 July 1995 w.e.f. 3 August
1995 till the last working day of academic year 1995-96. At the
end of the academic year, his services were terminated w.e.f. 30
April 1996. He was reappointed as Assistant Teacher on
temporary basis for the academic year 1996-97 w.e.f. 13 June
1996 and his services were terminated w.e.f. 30 April 1997. He
was once again appointed as Assistant Teacher on temporary
basis by order dated 5 August 1997, in which his services were
apparently put on probation from 13 June 1997 for a period of
two years. He was terminated on 31 March 1998. Lastly,
Respondent No.1 was appointed by order dated 13 June 1998
Megha 2_wp_6022_2002_fc.docx
once again stating that the same was on probation basis. His
services were terminated by order dated 31 March 1999
retrospectively w.e.f. 2 May 1999. Apparently, the Headmistress
had sent proposals for approval of appointment of Respondent
No.1 for each academic year and the Education Officer had
granted approvals on 26 August 1996, 29 March 1997, 3
September 1997 and 10 August 1998 to the appointment of
Respondent No.1 in respect of every academic year.
3) It appears that during the currency of last
appointment of Respondent No.1, management issued
advertisement in the newspaper on 2 June 1999 for filling of one
post of Assistant Teacher in Scheduled Tribe (ST) category or
Nomadic Tribe (NT) categories. Petitioner applied in pursuance
of the advertisement. She belongs to NT category and in
pursuance of the advertisement, she was selected and was issued
appointment order dated 26 July 1999 appointing her as
Assistant Teacher w.e.f. from 26 July 1999 upto last working day
of academic year 1999-2000. She was issued fresh appointment
order dated 12 July 2000 upto last working day of academic year
2000-2001. The third appointment order was issued in
Petitioner's favour on 9 August 2001 appointing her from 9 July
2001 till academic year 2001-02.
4) Since Respondent No.1 was not appointed after the
last tenure of his appointment, which ended in May-1999 he filed
Appeal No.90 of 1999 before the School Tribunal, Navi Mumbai
challenging the termination order dated 23 July 1999 and
seeking reinstatement in service. Respondent No.1 perceived
that his termination was owing to appointment of Petitioner and
accordingly impleaded her as Respondent No.4 in his appeal. The
appeal was resisted both by the Petitioner as well as by the
management by filing their respective written statements.
Management raised the plea that initial appointment of
Respondent No.1 was merely on the basis of an application
without issuance of advertisement and that he had never
mentioned in his application that he belonged to Other Backward
Class (OBC) category. Management further pleaded that
Respondent No.1 produced school leaving certificate indicating
his caste as 'non-BC' and that he had never submitted any caste
certificate of OBC category to the school. Management also relied
upon undertaking filed by Respondent No.1 about his
appointment being made against post reserved for SC/ NT
category. Management also levelled allegations against the
Headmistress of the school with regard to appointment of
Respondent No.1. It appears that Headmistress of Respondent
No.3-School filed her own written statement denying the
allegations made against her but ultimately justified termination
of Respondent No.1.
5) The School Tribunal proceeded to allow Appeal No.90
of 1999 filed against Respondent No.1 and set aside oral
termination dated 23 July 1999 effected from 26 July 1999 and
directed reinstatement of Respondent No.1 alongwith all
consequential benefits and continuity of service but without
backwages.
the order passed by the School Tribunal dated 7 June 2002. It
appears that services of the Petitioner were terminated for
implementation of the order passed by the School Tribunal. She
has accordingly sought a prayer for her reinstatement. The
Petition came to be admitted by order dated 8 July 2003. The
Petition is called out for final hearing.
7) Mr. Kayande, the learned counsel appearing for the
Petitioner would submit that the School Tribunal has grossly
erred in allowing the appeal filed by Respondent No.1. He would
submit that the very appointment of Respondent No.1 was void.
That as per the roster, a post in NT category was vacant in
Respondent No.3-School. That Respondent No.1 merely
submitted an application for his appointment in absence of any
advertisement. His school leaving certificate indicates that he
belongs to open category. That he never produced caste certificate
at the time of his initial appointment and was always treated as
open category candidate at the time of his initial appointment.
That his initial appointment was merely temporary and was a
stop-gap arrangement due to non-availability of NT candidate.
He would invite my attention to the undertaking submitted by
Respondent No.1 at the time of his initial engagement indicating
the acknowledgment on his part that the appointment was a
stop-gap arrangement on the post reserved for SC/NT category.
That therefore, his services are rightly terminated after filling up
vacancy in NT category by following due process of selection. Mr.
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Kayande would further submit that as against Respondent No.1,
Petitioner's initial appointment is after following due process of
selection. He would invite my attention to the advertisement
issued by the management, in pursuance of which Petitioner's
appointment was made. He would therefore submit that
Petitioner was a regular appointee right since inception against
reserved category post as per roster. He would submit that the
School Tribunal has grossly erred in holding that appointment of
Respondent No.1 was made against post reserved for OBC
category. That said finding is perverse. That the Tribunal has
misread the undertaking given by the Respondent No.1 at the
time of his initial appointment. He would submit that the
Tribunal has erroneously held that appointment of Respondent
No.1 was continuous, ignoring the fact that there were regular
breaks in his temporary spells of services. In support of his
contentions, Mr. Kayande would rely upon following judgments:
(v) Shriram Mahadeorao Tandale Vs. Saraswatimata
Vidya Prasarak and Others5
2007 (109)Bom LR 1663
Writ Petition No.9312 of 2014, decided on 23 August 2016.
1997(5) SCC 152.
Writ Petition No.3325 of 1997, decided on 17 November 2009 Bombay High Court
2006 (2) Mh.L.J. 131(Nagpur Bench)
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(vi) Vilas Laxman Gavai Vs. Dnyandeo Uttamrao
Dhandar and Ors.6
8) The Petition is supported by Mr. Modgi, the learned
counsel appearing for Respondent Nos.2 and 3-management. He
would submit that Respondent No.1 did not acquire any right to
continue in service as his initial appointment was as a measure
of stop-gap arrangement till availability of suitable NT
candidate. That Respondent No.1 wrongly represented to the
Tribunal that his appointment was against OBC category. He
would also rely upon undertaking filed by Respondent No.1 in
support of his contention that challenge to the termination order
was contrary to the undertaking filed with the management. He
would submit that the then Headmistress engaged Respondent
No.1 without following any process of selection. That there was
neither vacant post available in open category or even in OBC
category nor any advertisement was issued in pursuance of
which appointment of Respondent No.1 was to be made. That the
Headmistress assisted Respondent No.1 in securing approvals to
his appointment. That there was never any intention to fill up
OBC vacancy, that too permanently. The intention, at the
highest, was to merely make temporary appointment till
availability of NT category candidate. He would submit that the
Tribunal has erred in holding that there was deemed
confirmation of services of Respondent No.1. In support of his
contention that deemed confirmation cannot be awarded and that
notice before termination is not necessary he would rely upon
judgment of Division Bench of this Court in Priyadarshini
Writ Petition No.3364 of 2008, decided on 1 July 2017 (Nagpur Bench)
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Education Trust (supra) he would submit that roster examined
by the Education Officer indicates that non-existence of OBC
category vacancy.
9) Mr. Modgi would further submit that even the caste
certificate of Respondent No.1 is found to be not genuine as its
validity was obtained in absence of vigilance record. That
services were subsequently terminated on various grounds and
on multiple occasions. That Respondent No.1 has crossed the age
of superannuation on 30 May 2023, whereas Petitioner is yet to
attain the age of superannuation and can serve with
Respondent-management. Mr. Modgi would submit that, though
not contemporaneously, management has also challenged
impugned order of the School Tribunal. Management filed
application for review of the impugned order of the School
Tribunal in the year 2020 after caste claim of Respondent No.1
was found to be ingenuine and rejection of review petition is
challenged in Writ Petition No.11210 of 2021. That therefore it
cannot be contended that Respondent - management is not
aggrieved with impugned order of the School Tribunal. Mr.
Modgi would further submit that Respondent No.1 has filed
undertaking for refund of wages in the event of the present
petition being allowed. That therefore continuation of his
services during pendency of the present Petition cannot create
equities in his favour. He would therefore pray for setting aside
the impugned order passed by the School Tribunal.
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10) Petition is opposed by Mr. Fuzail Wasif, the learned
counsel appearing for Respondent No.1. He would submit that
the Tribunal has rightly considered the entire material on record
for the purpose of holding that the appointment of Respondent
No.1 was made against post reserved for OBC category. That the
Tribunal has perused the roster as well as orders of Deputy
Director and Education Officer for the purpose of holding that
the appointment was made against OBC category post. That he
would invite my attention to the issues framed by the Tribunal
in support of his contention that validity of appointment of
Respondent No.1 was not in issue before the Tribunal. That the
Tribunal was concerned only with termination of his
appointment. That in the various records of the School and of
Education Officer, Deputy Director, etc., Respondent No.1 was
always reflected as OBC category appointee. That his services
were put on probation in academic year 1997-98 as well as 1998-
99.
11) Mr. Wasif would further submit that Petitioner has
approached this Court with a case that her continuance in
appointment has no relationship with termination order of
Respondent No.1. That therefore this Court need not go into the
issue of validity of appointment of Respondent No.1. He would
submit that Petitioner therefore does not have locus standi to file
the present Petition thereby indirectly supporting termination
order of Respondent No.1. That the issue before the School
Tribunal was purely between Respondent No.1 and management
about termination of services of Respondent No.1, with which
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Petitioner is not concerned. That if Petitioner believes that her
termination is owing to reinstatement of Respondent No.1, in
that case Petitioner cannot challenge the order of the School
Tribunal as her initial appointment was conditional subject to
outcome of the appeal preferred by Respondent No.1.
12) Lastly, Mr. Wasif would submit that Respondent No.1
has been harassed by the management. That the management
has not challenged the order of the Tribunal and has obeyed it by
reinstating Respondent No.1. He has been terminated on
multiple occasions forcing him to approach the School Tribunal
time and again. That on each occasion, Respondent No.1 has
succeeded before the Tribunal. That Respondent No.1 has finally
attained the age of superannuation on 30 May 2023 and is
awaiting pensionary benefits. He would submit that dismissal of
the Petition would ensure that Respondent No.1 would secure
pensionary benefits in respect of services of 28 long years
rendered with the Respondent -management. He would
accordingly pray for dismissal of the Petition.
13) Rival contentions of the parties now fall for my
consideration.
14) The case presents a unique conundrum where non-
continuation of Petitioner as Assistant Teacher in the school is
attributable to the School Tribunal allowing the appeal preferred
by Respondent No.1 and setting aside his termination order.
Though the Petitioner has pleaded both in the present Petition
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as well as in the written statement filed before the School
Tribunal that she is not appointed against the post vacated by
Respondent No.1, by now, it is no longer disputed position that
Petitioner and Respondent No.1 have both served against the
same post of Assistant Teacher in Respondent No.3-school. Thus,
only one could continue in service and the other must make way
for continuation of the other. In fact, this is a reason why
Petitioner has thought it necessary to challenge the order passed
by the School Tribunal because reinstatement of Respondent
No.1 in service has resulted in her termination. Respondent No.1
has also impleaded Petitioner in his appeal, and she has actively
participated in opposing the appeal before the School Tribunal.
Though Respondent No.1 has sought to question locus of
Petitioner to maintain the Petition in the light of her averment
that appointment was not made against post vacated by
Respondent No.1, in my view, Petitioner possesses necessary
locus to file the present Petition as she was impleaded as
Respondent No.4 in the appeal preferred by Respondent No.1.
The objection of locus sought to be raised by Respondent No.1 is
accordingly repelled summarily.
15) It is an admitted position that no advertisement was
issued while making initial appointment of Respondent No.1. It
is the allegation of management that the then Headmistress
illegally effected temporary appointment of Respondent No.1,
which is not backed by any resolution of the management. There
is also a certain degree of debate between the parties as to
whether appointment of Respondent No.1 was made as OBC
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category candidate or not and whether vacancy in OBC category
was available as per the roster.
16) The initial appointment of Respondent No.1 was
made on 27 July 1995 w.e.f. 3 August 1995, which continued till
end of the academic year on 30 April 1996. After summer
vacation break, he was reappointed on 13 June 1996 and was
continued till 30 April 1997. He was thereafter appointed on 5
August 1997 w.e.f. 13 June 1997 and was continued till end of
academic year on 1 May 1998. The most striking feature of third
appointment order dated 5 August 1997 is that the word
'probation' was mentioned in the said appointment order. Though
the management has continuously attempted to shirk its
responsibility and has sought to frame the then Headmistress for
making appointment of Respondent No.1, order dated 5 August
1997 bears signature of Secretary of the management in addition
to that of Headmistress. The last appointment order was on 13
June 1998 in which again word 'probation' was included and the
appointment continued till the end of academic year i.e. 2 May
1999.
17) Though Mr. Kayande has attempted to suggest that
there was no continuity of appointment of Respondent No.1 and
he was given breaks from time to time, even the appointment of
Petitioner was made in similar fashion. She was initially
appointed by letter dated 26 July 1999 on temporary basis till
last working day of 1999-2000. Second appointment was on 18
July 2000 till end of academic year 2000-2001. The last
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appointment order was on 9 August 2001 till end of academic
year 2001-2002. Thus, even qua the Petitioner there were breaks
during summer vacation. Petitioner therefore cannot seek to take
disadvantage of gaps on account of summer vacation brakes in
four appointment orders of Respondent No.1.
18) Though the management as well as Petitioner have
sought to brand appointment of Respondent No.1 as purely
temporary and stop-gap arrangement till availability of NT
category candidate, they are unable to explain as to why
approval was sought for appointment of Respondent No.1 for
each academic year. The approval orders are placed on record by
way of additional affidavit of Respondent No.1 dated 2 June
2003, which shows that approval was granted by the officer of the
Deputy Directory of Education, Nashik, on 26 August 1996. As
per the approval order, Respondent No.1 was placed in the pay
scale of 2000-3500. The said approval was for academic year
1995-96. By order dated 29 March 1997, the Deputy Director,
Education, issued approval for academic year 1996-97 in which
the date of initial engagement of Respondent No.1 was indicated
as 3 August 1995. In similar manner, third approval was issued
on 3 September 1997 by the Deputy Director for academic year
1997-98. The next approval order is dated 3 September 1997 in
which again, initial appointment of Respondent No.1 was
indicated as 3 August 1995 with pay scale of 2000-3500. The last
approval order is dated 10 August 1998 in which also
appointment of Respondent No.1 was approved by the Deputy
Director of Education.
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19) Upon being questioned as to how the management
permitted the Headmistress to secure approval to the
appointment of Respondent No.1 for four consecutive years if the
management was unwilling to continue his services, Mr. Modgi is
unable to give any satisfactory answer. In my view therefore, the
blame sought to be put by the management on the then
Headmistress with regard to appointment and approval of
Respondent No.1 is clearly afterthought. In the initial
engagement as well as continuation to grant of approval to the
appointments of Respondent No.1 was obviously with active
consent of the management.
20) The next issue for consideration is whether
appointment of Respondent No.1 was validly made and whether
he had right to continue in service. Though Mr. Wasif has
repeatedly contended that validity of appointment of Respondent
No.1 was not in issue before the Tribunal, in my view, the
termination is ultimately linked to the issue of the manner in
which his appointment was made. Though the Tribunal has
ultimately held that specific issue was not framed about validity
of his appointment, while answering the issue about legality of
his termination, the Tribunal has conducted an in-depth enquiry
into the validity of appointment of Respondent No.1. It would be
apposite to reproduce the findings recorded by the Tribunal with
regard to the manner of appointment of Respondent No.1 as
under:
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11. It is crystal clear from the nature of the appointment of the
appellant is that he was appointed as an assistant teacher w.e.f. 3
August 1995 as per appointment order dated 27.7.1995 for the
academic year 1995-96 as a O.B.C. candidate. As per roster
maintained by the respondents upto 31.12.1995 there was no
backing. The said roster was examined by Backward Class Section,
Konkan Bhavan on 20.1.997. In the roster of 1996 the management
has stated that, there was no permanent appointment during that
year. However, in the academic year 1995-96 as there was no backlog
even of O.B.C. candidate the appellant was appointed as a O.B.C.
candidate in a permanent vacancy. The roster of the respondent no.2
School and Junior College was modified as per 200 point 'Bindu
Namawali' as on 31.12.1995. As per Maharashtra Govt. circular
dated 15.9.1995 the said roster was checked by Backward Class
Section, Konkan Bavan by Naib Tahsildar on 8.4.1996 and backlog of
S.C.-2, S.T.-1, N.T.-1, D.T.-1 and O.B.C.-0 i.e. total posts 5 of above
backward classes are shows as a backlog. However, while appointing
the appellant he was given Bindu No.84, whereas Shri B.B.
Gangurde candidate of S.T. was given Bindu No.81. Hence, it is
crystal clear that, the appointment of the appellant during the
academic year 1995-96 was shown as a candidate of O.B.C. as per
revised roster as per 200 point 'Bindu Namawali.".
12. The H.M. of respondent no.2 sent a proposal for approval of
teachers of junior college for the year 1995-96 to the Deputy Director
of Education, Nashik Division, Nashik on 10.1.1996 alongwith all the
relevant information i.e. workload information in Form A & B, C &
D. In form no. B the name of the appellant is shown as a candidate
of other backward class and new appointment. In form no. C it was
submitted that, there was no backlog. This information submitted to
the Dy. Director was also sworn by the Headmistress with a separate
affidavit. Therefore, the appointment of the appellant was on the
permanent post but, his appointment was temporary for the
academic year 1995-96. Hence, the appointment of the appellant was
as a O.B.C. candidate, which is one of the backward class as per Sub
Rule 7 of Rule 9, which is in a clear vacancy and also certified by the
Backwad Class Section, Konkan Bhavan, on the revised roster
maintained by the management. The said appointment came to and
end by the termination order dated dated 30.4.1996 w.e.f. from the
said date under the signature of the H.M. of the respondent no.2
school and not by the management. There is no one month notice for
termination of the services of the appellant. However, his
appointment was continued in the next academic year 1996-97 from
the beginning of the academic year i.e. 13.6.1996 by the appointment
order dated 13.6.1996. This appointment is also in a clear vacancy.
The proposal was sent by the H.M. on 15.10.1996 to the Dy. Director
of Education for the academic year 1996-97. In the information in
Form-B the name of the appellant was shown as the other backward
class candidate, previous experience was shown from the year 1995.
The said appointment of the appellant was approved by the Deputy
Director of Education in the year 1995-96 and in the year 1996-97 for
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the academic year. The said appointment came to an end on the last
working day i.e. on 30.4.1997 by the termination notice dated
27.3.1997. His appointment was continued in next academic year on
probation w.e.f. 13.6.1997 by the appointment order dated 5.8.1997.
The proposal for approval was sent for the year 1997-98 and in Form-
B the name of the appellant was shown as open category candidate.
But, in view of the above two proposals of 1995-96 and 1996-97 it is a
wrong proposal showing the name of the appellant as open category
candidate instead of O.B.C. candidate. However, his services were
terminated at the end of academic year 1997-98 w.e.f. 1.5.1998 a.m.
as per notice dated 31.3.1998. However, he was again continued in
the next academic year w.e.f. 13.6.1998 by the appointment order
dated 13.6.1998. The proposal for approval was sent to the Dy.
Director and int hat proposal the name of the appellant was shown
as a open category candidate instead of O.B.C. candidate. The said
services were also terminated w.e.f. 2.5.1999 by the termination
order dated 31.3.1999.
13. However, in view of the above appointment orders and
continuous services of the appellant in respondent no.2 junior college
w.e.f. 3.8.1995 to 2.5.1999 is without any break. During the first two
years of service after first year the services of the appellant were
terminated by the termination order of the H.M. which was
admittedly illegal. The appellant has completed two years of
continuous service w.e.f. 3.8.1995 to 30.4.1997, hence he was deemed
permanent. Even thereafter, he was continued and was appointed
on probation and he completed two years of continuous service
without any break, hence his appointment was u/Sec. 5 of the Act
and on completion of two years of probation he was deemed to have
been confirmed. Hence, it is clear that, the appointment of the
appellant was in a clear vacancy. He was never informed by the
management that, his appointment was against the reserved
category candidate i.e. against S.T. or N.T. category candidate. His
services are not terminated on the ground that, his appointment was
against the reserved category i.e. S.T. or N.T. category. However, at
the time of preparing revised roster as per 200 point 'Bindu
Namawali' by the management, the name of the appellant was
incorporated at serial no.84 on 'Bindu Namawali' as on 31.12.1995
during his first academic year, at that time there was no backlog of
O.B.C. but, there was a backlog of 5 reserved category candidates
belonging to S.C., S.T., N.T., etc.,
21) The Tribunal has thus conducted detailed enquiry
into the manner in which initial appointment of Respondent
No.1 was made and how it was continued from time to time. The
Tribunal has held that the management continued reflecting the
appointment of Respondent No.1 as O.B.C. category in several
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documents. The Tribunal has taken note of the fact that the
third tenure of appointment was on probation. The Tribunal has
held that Respondent No.1 belongs to OBC category. Much has
been argued about the entry in school leaving certificate of
Respondent No.1, which reflects his caste as 'non-BC'. It was also
the case of management before the Tribunal that Respondent
No.1 never produced any caste certificate at the time of his initial
engagement and he was appointed as open category candidate.
However, the management itself has repeatedly represented to
the Deputy Director of Education that appointment of
Respondent No.1 was made against OBC category. The issue is
whether the management can now be permitted to take a volte
face and contend that Respondent No.1 did not a have right to
occupy reserved category post for NT category.
22) The factual position that emerges after perusal of
documents on record is that school leaving certificate of
Respondent No.1 does not reflect that he belongs to OBC
category. However, the caste certificate has been issued in his
name indicating that he belongs to Leva Patil caste, which is
identified as OBC. According to the management, only NT
category vacancy was available and that even if Respondent No.1
is treated as OBC candidate, he did not have right to occupy the
post reserved for NT category. The undertaking submitted by
Respondent No.1 that he was holding post reserved for SC/ST
category is also relied upon. The issue that arises for
consideration is whether the order passed by the School Tribunal
deserves to be set at naught on the ground of existence of some
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confusion about the exact category to which the vacant post of
Assistant Teacher belong. According to the School Tribunal,
there was an OBC category vacancy and Respondent No.1 was
appointed as an OBC category candidate. This is a plausible view
taken by the School Tribunal after perusing the documents and
evidence on record. In exercise of jurisdiction under Article 227
of the Constitution of India, I am not inclined to disturb the said
finding.
23) This Court can also not turn a blind eye to the events
that unfolded during pendency of the present Petition. Services
of the Petitioner were terminated and Respondent No.1 came to
be reinstated in service after the appeal was allowed by
impugned judgment and order dated 7 June 2002. Thus,
Petitioner has been out of service after end of the last
appointment in April 2002. As against this, Respondent No.1
was reinstated in service from academic year 2002-2003. He
continued to work with the management and has crossed the age
of superannuation by 30 May 2023. It appears that his services
were terminated on multiple occasions after reinstatement in the
year 2002. However, it appears that Respondent No.1 has
succeeded before the School Tribunal in respect of various
termination orders. The exact details of such termination as well
as orders passed by the School Tribunal have not been placed on
record, possibly on account of the fact that same are not really
relevant for deciding the present Petition. What however needs to
be taken note of is the fact that Petitioner has worked hardly for
three years whereas Respondent No.1 has continued in service
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and has crossed the age of retirement. He is awaiting payment of
pensionary benefits.
24) What also needs to be taken note of is the fact that
the management has not challenged School Tribunal's order
dated 7 June 2002. It has implemented the said order by
reinstating Respondent No.1 in service. Though Mr. Modgi has
contended that the management has also challenged the order of
the School Tribunal, I am unable to accept the said contention.
The said contention is premised on filing of application for review
of order dated 7 June 2002 by the management sometime in the
year 2020. The Tribunal has apparently refused to condone the
delay in entertaining the review petition of the management.
What is challenged by the management in Writ Petition
No.11021 of 2021 is mere order refusing to condone the delay in
filing the review petition. Therefore, Writ Petition No.11021 of
2021 cannot be construed to mean challenge to the School
Tribunal's order dated 7 June 2002. In any case, it is utterly
inconceivable that proceedings filed 18 years later for review can
be construed as challenge by the management to the order of the
School Tribunal passed on 7 June 2002.
25) Thus, only Petitioner is aggrieved by the School
Tribunal's order dated 7 June 2002 and has filed the present
Petition. Though the management has strenuously supported the
Petitioner in her challenge to School Tribunal's order, the
management was contemporaneously never aggrieved by
Tribunal's order and in fact, implemented the same.
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26) In the light of the above provision, the issue that
arises for consideration is whether this Court should exercise
jurisdiction under Article 227 of the Constitution of India to
interfere in the order passed by the Tribunal. At this juncture,
considering the events that have occurred during pendency of the
Petition, if the Petition is to be allowed, the same would result in
restoration of termination order of Respondent No.1. Whether
restoration of his termination order effected in the year 1999
would undo the services rendered by him after 2002 onwards
becomes questionable. Though Mr. Modgi has sought to suggest
that continuation of services of Respondent No.1 were subject to
undertaking, it would be too iniquitous to expect recovery of
salary and allowances drawn by Respondent No.1 for more than
two decades during pendency of the present Petition. Respondent
No.1 has already crossed the age of superannuation on 31 May
2023. As against this, Petitioner has hardly worked for only three
academic years and was possibly never confirmed in service.
Considering this position, it would not be appropriate for this
Court to interfere in the order of the School Tribunal, even if this
Court was to come to conclusion that order deserves to be set
aside.
27) Respondent No.1 was continued for four academic
years. His services were put on probation during the course of
third academic year w.e.f. 13 June 1997. He has worked on
probation till 2 May 1999 and has thus completed the period of
probation prescribed under sub-section (2) of Section 5 of the
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Maharashtra Employees of Private Schools (Conditions of
Service) Regulation Act, 1977. Under that provision, completion
of period of probation entails due confirmation of service. I am
therefore of the view that the Tribunal has rightly arrived at a
conclusion that Respondent No.1 acquired deemed confirmation
in service.
28) As observed above, the view taken by the Tribunal
appears to be a plausible view and the same cannot be termed as
something which the Tribunal could not have taken in the given
facts and circumstances of the case. Thus, on both the counts of
the view being plausible, as well as occurrence of subsequent
events that this Court is not inclined to interfere in the order
passed by the School Tribunal.
29) What remains now is to deal with judgments relied on
by Mr. Modgi and Mr. Kayande:
(i) Judgment of Division Bench of this Court in
Priyadarshini Education Trust (supra) deals with issue
of impermissibility to confer deemed confirmation without
services being put on probation and absence of necessity for
issuance of notice before passing termination order. This
Court held in paragraphs 7 and 11 as under:-
7. ...In the matter of Bhartiya Gramin Punaarrachana
Sanstha vs. Vijay Kumar and ors., 2002 (6) SCC 707, relying
upon observations of the Supreme Court in para 7, it was
submitted by Advocate Shri Salunke that provisions in the
statute, regarding deemed confirmation as contained in
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section 5(2) on completion of statutory period of probation of a
person, who was put on probation consequent to his
appointment in a permanent vacancy, would not be applicable
to a person like respondent No.1 -teacher, who was appointed
only for a specific period and without being put on probation.
In the matter of Anna Pethe vs. Presiding Officer, School
Tribunal, 1997 (3) Mh.L.J. 697, relied upon by Advocate Shri
Salunke, a Division Bench of the Bombay High Court has
observed that, temporary appointees are not entitled to claim
permanent status, unless permanent vacancies are filled in as
per section 5 of the Act and the rules thereunder.
Lastly, decision of learned Single Judge of this High
Court in the matter of A.P. College and ors. vs. Mrs. Pramila
N. Kutti 1997 (3) Mh.L.J. 195, is relied upon by Advocate Shri
Salunke for the purpose of propounding that there was no
necessity to serve a notice, as required by Rule 28(1) of MEPS
Rules, upon the teacher before terminating her services. It is
held by learned Single Judge that where appointment of
temporary employee is made for a fixed period and services of
such temporary employee came to an end on the expiry of that
period, notice under Rule 28(1) was not required, nor specific
termination order was necessary to be passed. ...
xxx
11. It was argued by Advocate Shri Kazi that Rule 9 is the
only rule, regarding the manner of appointment of staff and,
therefore, the procedure as contained in this rule, must be
taken as "in the manner prescribed" as contemplated by sub-
section (1) of section 5. He also referred to sub-rule (8) and
pointed out that the said sub-rule makes a provision for
advertisement of the vacancy in at least one newspaper
having wide circulation, when the management desires to fill
in the vacancies reserved for SC/ST/DTNT/OBC. According to
him, sub-rule (3) makes no such provision and, therefore, it
must be inferred that there is no necessity to issue an
advertisement for the purpose of filling up vacancies of open
category.
We are unable to appreciate, much less accept, such an
argument. Referring to proviso to sub-section (1) of section 5
of the Act, it is evident that, as soon as there is vacancy, the
management is required to communicate with the Education
Officer, Zilla Parishad. The vacancy is to be filled in, from the
list of surplus persons maintained by the Education Officer.
This is the first indication of control of the State over the
recruitment and appointment of staff, even of private schools.
Even on reference to sub-rule(3) of Rule 9, the candidate
eligible for appointment and desirous of applying for such
post, is required to apply in writing, by giving full details. We
are unable to visualise a possibility of deserving candidate
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knowing about the vacancies in any private schools, unless
the school invites applications by advertisement. The
persons, who may learn about vacancies without
advertisement, may only be kith and kins or those in close
contact with the managemnet or at the most staff members.
If argumnet of Advocate Shri Kazi is to be accepted, it will be
tantamount to accepting that rule 9 is drafted in such a
manner as to promote nepotism, so far as appointments of
open category candidates to teaching and non-teaching posts
in private schools are concerned. If the argument of Advocate
Shri Kazi is to be accepted, Rule 9 will have to be read in a
fashion, where reserved category candidates are required to
enter the service by competing amongst themselves, but an
open category candidate may be in a position to seek an
appointment without competing. Legislature could not have
intended to prescribe a manner of recruitment which would
discriminate between reserved and un-reserved categories in
respect of manner in which they can seek appointments. A
legislation making it easier for a reserved candidate, may be
justified, in view of Article 15(4) of the Constitution. But, a
reverse position cannot be justified by any line of argument.
...
In my view, judgment in Priyadarshini Education Trust
would have no application to the facts of the present case
for variety of reasons. Respondent No.1 was put on
probation vide third appointment order and therefore, the
finding recorded by the Tribunal about confirmation of his
services cannot really be found fault with. Since
Respondent No.1 attained status of a confirmed teacher, his
services could not be dispensed with without following due
process of law. In my view, therefore, the judgment in
Priyadarshini Education Trust would have no
application to the facts of the present case.
(ii) Mr. Kayande has relied upon judgment of this Court in
Datta Education Society (supra) in support of his
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contention that an appointment made without following
due process of law would not result in deemed permanency.
In my view, the judgment will have no application to the
peculiar facts of the present case where approvals were
granted to the appointments of Respondent No.1 from time
to time and his services were put on probation during the
third academic year coupled with the fact that he was
continued in service for two years after probation.
(iii) Judgments of this Court in Hindustan Education
Society and Goutami Shikshan Sanstha (supra) are
relied upon in support of contention of impermissibility to
treat temporary appointment as permanent one. However,
the appointment of Petitioner was also temporary in each of
the three academic years. The only difference here is that
the services of Respondent No.1 were placed on probation
during the third academic year and it no longer remained a
temporary appointment.
(iv) The judgment in Shriram Mahadeorao Tandale
(supra) is on the issue of fraudulent caste certificate, which
is not the issue involved in the present Petition.
(v) Lastly, judgment in Vilas Laxman Gavai (supra) is
relied upon by Mr. Kayande in support of his contention
that Respondent No.1 is a back door entrant and does not
have right of continuation in service. In my view, the ratio
of the judgment cannot be applied to the facts of the
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present case where Respondent No.1 has continued in
service during pendency of the present Petition, and it
would be too late in a day to now hold his appointment as
illegal.
30) I therefore do not find any valid reason to interfere in
the impugned order passed by the Tribunal. The Petition is
accordingly disposed of. Rule is discharged.
[SANDEEP V. MARNE, J.]
Digitally
signed by
MEGHA
MEGHA SHREEDHAR
SHREEDHAR PARAB
PARAB Date:
2025.04.02
14:57:43
+0530
1 April 2025
