Writ Petition No. 5247 of 1998. Case: Mrs. Sneh Kohli Vs The Universal English Trust & Anr.. High Court of Bombay (India)
| Case Number | Writ Petition No. 5247 of 1998 |
| Counsel | For Appellant: Mr. Mihir Desai, Senior Advocate, i/b. Ms. Devayani Kulkarni, Adv. and For Respondents: Mr. S.J. Panicker, a/w. Ms. Bhavika Pitale, Ms. Poonam Panicker, Advs., Mr. A.G. Kothari, Adv., Mr. A.R. Metkari, A.G.P. |
| Judges | R.D. Dhanuka, J. |
| Issue | Maharashtra Employees of Private Schools (Condition of Service) Regulation Act, 1977 - Sections 5(2), 9, 11(2); Constitution of India - Articles 226, 133, 134A, 141 |
| Judgement Date | October 18, 2016 |
| Court | High Court of Bombay (India) |
Judgment:
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By this petition filed under Article 226 of the Constitution of India, the petitioner seeks to impugn the order and judgment dated 28th August, 1997 passed by the learned Presiding Officer, School Tribunal, Mumbai dismissing the appeal filed by the petitioner under section 9 of the Maharashtra Employees of Private Schools (Condition of Service) Regulation Act, 1977. Some of the relevant facts for the purpose of deciding this petition are as under:-
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It was the case of the petitioner that the petitioner had obtained degree of B.A. from Pune University, M.A. from Bombay University and B.Ed. from Anna Malai University and was appointed as an assistant teacher against clear vacancy in respondent no.2 school w.e.f. June 1990. The petitioner belongs to the open category. The petitioner was continued in the next academic year in the same post in the respondent no.2 school.
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On 23rd March, 1992 the petitioner was issued a letter terminating her services w.e.f. the end of the academic year 1992-93. It is the case of the petitioner that she was however told that her services would be continued in the next year. On 25th June, 1992 the petitioner challenged the termination by filing an appeal (BOM/158/1992) before the school tribunal, Bombay Region, Bombay under section 9 of the said MEPS Act. The management opposed the said appeal filed by the petitioner by filing the written statement on 13th December, 1992 on several grounds including on the ground that the post against which the petitioner was appointed was specifically reserved for S.C., S.T. It was contended that even in the advertisement issued by the management in response to which the petitioner had applied for the said post it was made clear that the post advertised was reserved for S.C., S.T. etc.
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It was the case of the management that since the suitable candidate from the reserved category was not available, the petitioner was appointed on temporary basis and the proposal to that effect was sent to the Education Department in view of the school getting the grant-in-aid from the Education Department. The appointment of the petitioner was approved by the Education Department as temporary appointment. It was the case of the management that since in the next academic year, the suitable candidate from the reserved category was available, the services of the petitioner were to be discontinued. It was also contended by the management before the school tribunal that the performance of the petitioner was not at all satisfactory and that there were complaints against her and several warnings were issued to her by the management. It was the case of the management that the petitioner was in fact was not a qualified teacher in as much as the B.Ed.degree obtained by the petitioner from Anna Malai University was not a recognized by the State of Maharashtra.
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The school tribunal framed three issues which are extracted as under:-
"1. Whether the impugned order of termination dated 23rd March, 1992 is contrary to the provisions of M.E.P.S.Act, 1977 and Rules 1981 or is otherwise illegal or improper within the meaning of section 11(2) of M.E.P.S.Act?
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Whether the appellant is entitled to get any relief?
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What order?"
Insofar as issue nos. 1 and 2 are concerned, the school tribunal answered those two issues in negative and accordingly dismissed the said appeal by an order dated 28th August, 1997.
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In the said order and judgment, the school tribunal rejected the said appeal with the following reasons:-
(a) The appointment letter by which the petitioner herein was appointed to the said post as assistant teacher was not produced by either of the party. It was thus not possible to determine the exact terms and conditions on the basis of the original appointment order and therefore it became necessary to look into the other evidence which had been produced by the management by way of certified copies of the proposal sent to the Education Department for approval.
(b) On perusal of the copies of the advertisement issued by the management, it was clear that the posts which were advertised were reserved for S.C., S.T. The said post against which the petitioner was appointed was reserved for S.C., S.T. etc.
(c) In the proposal sent by the management to the Education Department, it was specifically informed that the petitioner was reappointed from 19th June, 1991 to 30th April, 1992 against a reserved category. The management had sent the proposal only for one academic year to the Education Department.
(d) The management had produced the list of teachers who belonged to S.C., S.T. serving in the school run by the management and supplied the said list to the social welfare officer and other Government Departments for the purpose of getting the candidates of the reserved category which list showed that the posts were reserved for various reserved categories.
(e) The petitioner through her advocate had admitted that the B.Ed.degree obtained by the petitioner from Anna Malai University was not recognized as valid by the State of Maharashtra.
(f) The petitioner was an untrained graduate and thus could be appointed only on temporary basis. The appeal filed by the petitioner was accordingly dismissed.
The impugned order passed by the School Tribunal, Bombay is impugned by the petitioner in this petition on various grounds.
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Mr.Desai, learned senior counsel for the petitioner submits that the petitioner was appointed on probation on a clear and permanent vacancy and thus her services could be terminated in the manner specifically provided for termination of services of a probational under the provisions of M.E.P.S.Act and Rules. He submits that merely because the approval to the appointment of the petitioner was granted only for one year, that could not be a valid ground for termination of services.
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It is submitted by the learned senior counsel that the school tribunal could not have held that the petitioner was a untrained teacher on the ground that the B.Ed. degree possessed by the petitioner from Anna Malai University was not held as recognized university by the State of Maharashtra. In support of this submission, learned senior counsel placed reliance on the judgment of this court in case of Ramkrishna Chauhan and Ors. vs. Seth D.M. High School, Deputy Director of Education, The Bharat Jatiya Sangh and State of Maharashtra and ors. (2013) 2 Mah.L.J. 713 and in particular paragraphs 2, 7 and 28.
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It is submitted by the learned senior counsel that the posts on which the petitioner was appointed was a clear and permanent vacancy. He submits that if the reserved candidate is not available for a reserved post, a candidate from the open post can be appointed on a temporary basis till the candidates from the reserved category is available. He submits that the management has to produce the records about the roaster before the school tribunal which was not produced. In support of this submission, learned senior counsel placed reliance on the judgment of this court in case of Baburao Amrutrao Kharekar vs. The State of Maharashtra and Ors., 1997(2) Bom.C.R. 447 and in particular paragraphs 9 and 10.
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It is submitted by the learned senior counsel that the petitioner was wrongly shown against the reserved post, the management did not produce any material before the school tribunal to show as to why the petitioner was shown against the alleged reserved post. He submits that the petitioner was thus appointed on probation and her services could be terminated only if her work was unsatisfactory during the probation period under Section 5 of the MEPS Act.
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It is submitted by the learned senior counsel that since the appointment of the petitioner was on a clear and permanent vacancy, the appointment of the petitioner could be only on probation and not for a temporary period under Section 5 (2) of the MEPS Act. Learned senior counsel for the petitioner placed reliance on the judgment delivered by the learned Single Judge of this Court in the case of Ramkrishna Chauhan Vs. Seth D.M. High School & Ors. decided on 22nd January 2007 in Writ Petition No.315 of 2006. He submits that in view of conflicting views taken by this Court in several orders and judgments on the issue whether an appointment on a permanent and clear post could be made on temporary basis or not, learned Single Judge of this Court referred the following issue for consideration of a larger bench:-
"Would it be open to the School Tribunal to hold that an employee would be deemed to be on probation within the meaning of Section 5(2) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 on the ground that the appointment was made in a clear and permanent vacancy, notwithstanding the fact that the letter of appointment specifically stipulated that the appointment has been made in a temporary capacity?"
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Learned senior counsel invited my attention to the judgment delivered by the Full bench pursuant to the reference made by the learned Single Judge of this Court in the case of Ramkrishna Chauhan Vs. Seth D.M. High School & Ors. in Writ Petition No.315 of 2006. The question referred to a larger bench is set out in paragraph 2 of the said judgment delivered by the Full bench. Learned senior counsel placed reliance on paragraphs 11, 17 and 24 and would submit that Full bench has categorically held that whether an appointment of an employee is made on temporary basis or probation against permanent vacancy, it is a question of fact to be pleaded and proved in the appropriate proceedings, on case to case basis. It is held that there is no legal fiction or deeming provision that every appointment made against the permanent vacancy, is deemed to be on probation, though the Management makes that appointment on temporary basis, having found that the candidates appeared in the selection process were unsuitable. It is submitted by the learned senior counsel that the judgment of the...
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