Hence, the power under
subsection
(2) of Section 5 is held to be discretionary.
18. The exercise of discretion under subsection
(2) of
Section 5 has to be by keeping in view the object of
enactment and the exigencies of the administration. If the
exercise of discretion is found to be arbitrary, unreasonable,
capricious or is a colourable exercise of power to defeat the
protection in service granted by the statutory provisions,
then the Court is empowered even to invoke the principles
of “lifting of veil” to find out the real reason of making an
appointment on temporary basis, and if the action is not
found to be bona fide, an appropriate direction can be
issued to provide protection in service by treating the
appointment on probation, even if it is shown to be on
temporary basis or for a fixed period. This is the view
propounded by the Full Bench, which is in conformity with
the object and the provisions of the MEPS Act. The ratio of
the decision of the Full Bench cannot be construed as
creating absolute bar to the jurisdiction of the School
Tribunal under Section 9 of the MEPS Act, to consider and
decide the question as to whether in the given facts and
circumstances of the case, an order of appointment on
temporary basis or for a fixed period in a permanent
vacancy cannot be treated as one on probation and the
employee is entitled to protection in service, in a challenge
to the order of termination.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 4404/2011
Abdul Rafique Abdul Hamid, Vs The Yavatmal Islamia Anglo Urdu Education Society, Yavatmal,
R. K. DESHPANDE, J.
DATE : 13 th FEBRUARY, 2014 .
Citation;2014(3) MHLJ 99 Bom
1. The School Tribunal, Amravati, by its judgment
and order dated 772001,
has dismissed Appeal
No. 201 of 1992A
filed under Section 9 of the Maharashtra
Employees of Private Schools (Conditions of Service)
Regulation Act, 1977 (“MEPS Act”), by the petitioner
challenging his oral termination dated 2992012
from service
as an Assistant Teacher in the School run by the respondent
No.1Society.
2. The School Tribunal has recorded the finding
that the appointment of the petitioner was made on
temporary year to year basis and it was terminated by an
order dated 2851992
and after termination, the petitioner
has worked only for 10 days occasionally. It has been held
that the appointment of the petitioner was to teach
Standards IXth and Xth which were not recognized and
hence, he was not entitled to the benefit of Section 5(1)
and (2) of the MEPS Act to treat his appointment on
2461991
as on probation.
3. The undisputed factual position is as under :
The petitioner was initially appointed by an order
dated 3101989
as an untrained teacher w.e.f.
5101989.
By another order dated 1771990,
the petitioner
was appointed on purely temporary basis up to the end of
academic session from 1771990.
In the meeting of the School
Committee, held on 2261991,
Resolution No. 2 was passed,
which reads as under;
“It is resolved that from amongst the candidates
who appeared for personal interview for the post
of Asstt. Teachers advertised in “Lok Doot”,
Marathi Daily, Yavatmal, Dated 11th June, 1991,
Shri Abdul Rafique s/o. Abdul Hamid, Yavatmal,
be appointed as a Assistant Teacher with effect
from 24.06.91 in the Scale of Rs.
1400401600501650EB501960EB
502250EB502300602600.
His appointment is temporary, until further
orders. He is B.,Sc. B.Ed.
Proposed by : Md. Murtaza
Seconded by : Shri Ikramul Haque.
Resolution passed unanimously.”
Pursuant to the said resolution, the petitioner was issued an
order of appointment dated 2461991,
containing
clauses (2) and (3) as under :
“2. Your appointment is purely temporary until
further orders from 24..6.91 to until further
orders. After expiry of the above period, your
services will stand terminated without any notice.
3. The terms of your employment and conditions
of service shall be as laid down in the
Maharashtra Employees of Private Schools
(Conditions of Service) Regulation Act, 1977, and
the Rules made thereunder”
4. The aforesaid appointment of the petitioner was
approved by the Education Officer (Secondary), Zilla Parishad,
Yavatmal, by his order dated 3121991.
In the last column of
“tenure of appointment”, it is stated that it is from 2461991
until further orders (25% quota of Graduate Teachers).
Thereafter, the petitioner was terminated from service by an
order in writing dated 2851992.
There is no reason stated in
the order of termination except making reference to the order
of appointment and the order of approval.
5. The petitioner claims that in spite of termination
order dated 2851992,
he was permitted to work on the post
till 2991992.
It was his stand that on 1101992,
the
respondent No. 4 – Ku. Sabha Nasreen d/o Abdul Samad
Answari, was appointed in place of the petitioner. The
petitioner, therefore, preferred an Appeal No. 201 of 1992A,
alleging that the respondents have orally terminated his
services w.e.f. 1101992.
The approval to the appointment of
respondent No.4 was also granted by the Education Officer
(Secondary), Zilla Parishad, Yavatmal, on 2631992
and it is
made subject to the result of the appeal filed by the present
petitioner, which was pending before the School Tribunal.
6. To deal with findings of the School Tribunal, I
have gone through the reply filed by the Management before
the School Tribunal. It is not the case of the management that
the petitioner was appointed to teach Standards IXth and Xth
which was not then recognized. The specific stand taken by the
Management before the School Tribunal and even in response
to the present petition is as under :
“The answering respondents No. 1 to 3 submit
that, the petitioner was appointed as Assistant
Teacher on 24/6/1991 purely on temporary basis
in accordance with the resolution dt. 22/6/1991 of
the School Committee, for Middle School (Class
Vth to VIIIth)”
In view of this, the School Tribunal has committed an error in
holding that the appointment of the petitioner was to teach
Standards IXth and Xth which were not recognized on the date
of appointment of the petitioner on 2461991.
Undisputedly,
the classes of Standards Vth to VIIIth to which the petitioner
was teaching, were recognized. Hence, the School Tribunal
had jurisdiction to entertain and decide the appeal.
7. It is urged by Shri Thakkar, the learned counsel
appearing for respondentManagement,
that the petitioner was
not possessing qualifications for being appointed as an
Assistant Teacher to teach Middle School Classes from
Standards Vth to VIIIth. According to him, the qualifications
prescribed for appointment as an Assistant Teacher in the
Middle School are S.S.C., and D.Ed. He submits that the
petitioner had obtained the Bachelor Degree in Science
(B.Sc.Biology)
and had obtained training qualification of
B.Ed. on 1461991.
He submits that the petitioner was not
possessing the qualification of D.Ed., and relying upon the
decision of the Full Bench of this Court in case of Jayashree
Sunil Chavan v. State of Maharashtra and others, reported in
2000(3) Mh.L.J. 605, he has urged that B.Ed., qualification
cannot be treated as equivalent to D.Ed qualification and the
petitioner possessing B.Ed. qualification is not qualified to be
appointed as an Assistant Teacher in the Primary School.
8. The proposition of law laid down by the Full
Bench of this Court in the aforesaid judgment cannot be
disputed. It is, however, not the stand taken in the reply filed
by the respondentManagement
before the School Tribunal that
the petitioner was appointed to a post which required the
qualification of S.S.C, D.Ed., and the petitioner was not
qualified for being appointed as an Assistant Teacher to teach
Middle School Classes as he was not possessing the
qualification of D.Ed.
9. Shri Ateeque, the learned counsel appearing for
the petitioner has invited my attention to the Government
Circular dated 1712001,
which clearly states that out of four
posts of Assistant Teacher in the Middle Schools teaching
Standards Vth to VIIth, three posts are required to be filled in by
the candidates possessing S.S.C/H.S.S.C., and D.Ed., whereas
one post is required to be filed in by the candidate possessing
graduate qualification and B.Ed., which is a training
qualification. The petitioner was appointed to one post of
teacher possessing qualification of B.Sc., B.Ed., which the
petitioner had at the time of appointment. This fact is amply
proved from the approval granted in the 25% quota of graduate
teachers by the Education Officer on 3121991
to the
appointment of the petitioner. It is, therefore, held that the
petitioner was qualified for appointment to the post.
10. The next question is whether the appointment of
the petitioner by an order dated 2461991
is to be treated as
one on probation in terms of provisions of
subsection
(2) of Section 5 of MEPS Act. It is urged by
Shri Thakkar, the learned counsel appearing for the
respondentManagement
that the appointment on temporary
basis can be made even in a permanent vacancy and such a
discretion of the management is not taken away by the
provisions of subsection
(2) of Section 5 of the MEPS Act.
For this proposition, he has relied upon the decision of the Full
Bench of this Court in case of Ramkrishna Chauhan v. Seth
D.M. High School and others, reported in
2013 (2) Mh.L.J. 713.
11. The main contentions are based upon the decision of
the Full Bench in Ramkrushna Chauhan's case, cited supra,
and hence the questions, which fall for consideration in this
writ petition, are what is the ratio and what is not the ratio of
the decision of the Full Bench. The Full Bench has considered
the following question which was referred to it.
“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?”
The question has been answered by the Full Bench in the
negative, which is apparent from para 28 of the decision. It has
been held 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 MEPS Act and the School
Tribunal cannot disregard the terms and conditions of the letter
of appointment, if it is expressly provides that the appointment
is on temporary basis, for a limited term.
12. The ratio decidendi of the decision has to be
found out only on reading the entire decision and not only a
part of it. In case of any doubt arising from reading the
decision, it can be resolved by assuming that the decision was
delivered consistently with the provisions of law and therefore,
the course of procedure in departure from or not in conformity
with the statutory provisions cannot be said to have been
intended or laid down by the Court unless it has been so stated
specifically. The doubt can be resolved by looking into the
other parts of the decision and not by reading a line here and
there from the decision.
13. After going through the observations made in
various paragraphs of the decision of the Full Bench, what is
the ratio and what is not the ratio of the said decision, is
summarized as under :
(i) A conjoint reading of subsections
(1)
and (2) of Section 5 of the MEPS Act shows that
ordinarily when the selection process is
commenced and the person duly found qualified
is available and found suitable, the Management
is under obligation to appoint him on probation
to fill in the permanent vacancy.
(ii) The provision of subsection
(2) of
Section 5 of the MEPS Act is enabling and
cannot be construed as creating a legal fiction to
treat every appointment in a permanent vacancy
as on probation or as taking away the implicit
power of the Management to make a contractual
or temporary appointment even in a permanent
vacancy.
(iii) There is nothing in the provisions of subsections
(1) and (2) of Section 5 of MEPS Act to
indicate that every appointment in relation to a
permanent vacancy must be deemed to have
been made on probation for a period of two
years irrespective of the fact that the
appointment is made on temporary basis or for a
fixed period.
(iv) If an order of appointment is on
temporary basis or for a fixed period, it is not
open for the School Tribunal to assume that the
employee was deemed to be appointed on
probation.
(v) An appointment on temporary basis in a
permanent vacancy should be by way of an
interim arrangement and exception where a
person is found qualified but not suitable.
(vi) The Management cannot be permitted to
take cover under the pretext of successively
rejecting the candidates in the selection process
on the ground of unsuitability and keeping on
appointing the same person or different persons
on contractual or temporary basis for a limited
period in a permanent vacancy.
(vii) If the Management wants to appoint a
duly qualified person selected in the manner
prescribed to be appointed on temporary basis in
a permanent vacancy, it must
contemporaneously record its subjective
satisfaction or tangible reasons as to why the
candidate selected need to be appointed on
temporary basis, so that the appropriate
authority or the court of law can consider the
challenge to the appointment on temporary basis
instead of on probation.
(viii) The question as to whether an
appointment on temporary basis or for a fixed
period in a permanent vacancy is to be
considered as on probation, is a question of fact
to be pleaded and proved in appropriate
proceedings on case to case basis and it will be
open to record a finding of the colourable
exercise of power against the Management, and
an appropriate direction can be issued in such
case.
(ix) It is not the ratio of the decision of the
Full Bench in Ramkrushna Chauhan's case that
under no circumstances, the appointment made
on temporary basis in a permanent vacancy can
be treated as an appointment made on probation.
14. It is not possible to accept the contention that the
ratio at serial Nos.(ii), (iii) and (iv) and the observations
made in paras 18, 24, and 28 of the said decision are
inconsistent or contradictory with the ratio at serial Nos.(i)
and (v) to (viii) above and the observations made in the
other parts of the decision. It cannot be assumed that while
laying down the law in paragraphs 18, 24 and 28, the Full
Bench was ignorant or was not aware as to the observations
made in other parts of the decision or of the other provisions
of law. On the contrary, the observations made in several
parts of the decision have to be construed as consistent with
each other and also with the provisions of law.
15. The object of the MEPS Act is to regulate
recruitment and conditions of service of employees with a
view to providing security and stability of service to enable
them to discharge their duties towards the pupils effectively
and efficiently. The precarious conditions of the employees
in a private school prevailing prior to coming into force of
the said Act, and the object of bringing into force of the said
Act have been very succinctly and aptly highlighted by
Dr. D.Y. Chandrachud, J. (as he then was the Judge of this
Court) in his judgment in the case of Matoshri Ramabai
Ambedkar Vidyarthi Vasatigruh Trust and another v. Bharat
D. Hambir and another, reported in 2009 (2) Mh.L.J. 121, in
para 5A therein as under :
“5A. Of late, there is a growing tendency of
managements of private schools to appoint
temporary employees from year to year, even
though the vacancy is permanent and an
adequate work load is available. This leads to
grave uncertainty for teachers and places them
at the mercy of the managements. The
temporary appointment of a teacher who
questions unethical practices of the management
is promptly terminated. He or she who
questions is cast away. Those who turn a blind
eye or worse, become willing participants in a
pattern of exploitation, are retained. This is a
perversion of what was intended by the State
legislation enacted in 1977. Placing teachers in
a state of eternal uncertainty is destructive of the
cause of education. In numerous cases before
this Court, the grievance is that teachers of
aided institutions are being subjected to
extortionate demands by unscrupulous
managements. Education has become a
business and managements of private schools,
with notable exceptions, are becoming pirates in
the high seas of education. The interpretation of
section 5 of the Act must be purposive – one that
would attain the statutory object and not lead to
a negation of statutory intent. Once a
permanent vacancy arises, a management is
duty bound statutorily to fill it up by appointing
a duly qualified candidate on probation. The
vacancy must be advertised to allow equal
opportunity to eligible candidates. A regular
process of selection must be held. A duly
qualified candidate has to be appointed.
Temporary appointments can by definition be
made when the vacancy is temporary. In such
cases, the exigencies of education require that
students must be imparted education and a
vacancy even for a short period will cause
serious hardship. But temporary appointments
are an exception. Making temporary
appointments the rule is to give a tool of
subversion to the hands of unethical
managements. Temporary appointments,
followed as a practice become a tool of
subversion because they perpetuate a regime of
uncertainty about service, place the teacher in a
position of perpetual fear and deprive teacher of
the stability needed to contribute to the process
of moulding young minds. This Court must
emphasise with all the authority at its command
that a subversion of statutory intent should not
be allowed. The Court will not allow itself to be
a mute by stander to the growing trend of a lack
of ethics in the management of private schools.
Judicial intervention is warranted in order to
preserve the statutory intent.”
16. In the light of the aforesaid purpose of the
MEPS Act, the provisions of Section 5 therein, need to be
seen. The same are, therefore, reproduced below :
“5. Certain obligations of Management of
private Schools.
(1) The Management shall, as soon as
possible, fill in, in the manner prescribed every
permanent vacancy in a private school by the
appointment of a person duly qualified to fill such
vacancy:
Provided that unless such vacancy is to be filled in
by promotion, the management shall, before
proceeding to fill such vacancy, ascertain from
the Educational Inspector, Greater Bombay, the
Education Officer, Zilla Parishad or, as the case
may be, the Director or the officer designated by
the Director in respect of schools imparting
technical, vocational, art or special education,
whether there is any suitable person available on
the list of surplus persons maintained by him, for
absorption in other schools; and in the event of
such person being available, the Management
shall appoint that person in such vacancy.
(2) Every person appointed to fill a
permanent vacancy except Shikshan Sevak shall
be on probation for a period of two years. Subject
to the provisions of subsections
(4) and (5), he
shall on completion of this probation period of
two years, be deemed to have been confirmed.
Provided that, every person appointed as shikshan
sevak shall be on probation for a period of three
years.
(2A) Subject to the provisions of subsections
(3) and (4), shikshan sevak shall, on completion of
the probation period of three years, be deemed to
have been appointed and confirmed as a teacher.
(3) If in the opinion of the Management, the
work or behaviour of any probationer, during the
period of his probation, is not satisfactory, the
Management may terminate his services at any
time during the said period after giving him one
month's notice or salary or honorarium of one
month in lieu of notice.
(4) If the services of any probationer are
terminated under subsection
(3) and he is
reappointed by the Management in the same
school or any other school belonging to it within a
period of one year from the date on which his
services were terminated, then the period of
probation undergone by him previously shall be
taken into consideration in calculating the
required period of probation for the purposes of
subsection
(2).
(4A) Nothing in subsection
(2), (3) or (4)
shall apply to a person appointed to fill a
permanent vacancy by promotion or by
absorption as provided under the proviso to subsection
(1).
(5) The Management may fill in every
temporary vacancy by appointing a person duly
qualified to fill such vacancy. The order of
appointment shall be drawn up in the form
prescribed in that behalf, and shall state the
period of appointment of such person.”
17. Subsection
(1) of Section 5 does not speak to the
nature of appointment to be made whether
temporary or
for a fixed period or on probation or on permanent basis. It
does not create an obligation to appoint a person on
probation if he is appointed to fill in the permanent vacancy.
Subsection
(2) therein creates an obligation to appoint a
person on probation for a period of two years in a
permanent vacancy. This provision is held by the Full
Bench to be enabling and it does not take away the implicit
power of the Management to make appointment on
temporary basis or for a fixed period even in a permanent
vacancy. The Management may have several good reasons
for making an appointment on temporary basis in a
permanent vacancy, including that the post is reserved for a
candidate belonging to a backward class category and no
suitable candidate from such category is available, or that
the Management wants to have a wider choice of the
candidate, which is not available. Hence, the power under
subsection
(2) of Section 5 is held to be discretionary.
18. The exercise of discretion under subsection
(2) of
Section 5 has to be by keeping in view the object of
enactment and the exigencies of the administration. If the
exercise of discretion is found to be arbitrary, unreasonable,
capricious or is a colourable exercise of power to defeat the
protection in service granted by the statutory provisions,
then the Court is empowered even to invoke the principles
of “lifting of veil” to find out the real reason of making an
appointment on temporary basis, and if the action is not
found to be bona fide, an appropriate direction can be
issued to provide protection in service by treating the
appointment on probation, even if it is shown to be on
temporary basis or for a fixed period. This is the view
propounded by the Full Bench, which is in conformity with
the object and the provisions of the MEPS Act. The ratio of
the decision of the Full Bench cannot be construed as
creating absolute bar to the jurisdiction of the School
Tribunal under Section 9 of the MEPS Act, to consider and
decide the question as to whether in the given facts and
circumstances of the case, an order of appointment on
temporary basis or for a fixed period in a permanent
vacancy cannot be treated as one on probation and the
employee is entitled to protection in service, in a challenge
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to the order of termination. The question of law framed in
para 2 of the judgment of the Full Bench answered in the
negative in para 28 therein and the connected observations
made in paras 18 and 24, therefore, need to be construed in
this fashion. Any other interpretation will be contrary to the
object and the purpose of the Act and the provisions of
Section 5, and shall be in dilution of the ratio of the
decision.
19. Section 5 of the MEPS Act makes a clear
distinction between the appointment in the permanent and
temporary vacancies. Subsection
(2) deals with the
appointment to be made in a permanent vacancy, whereas
subsection
(5) deals with the appointment to be made in a
temporary vacancy. If the appointment is found to be made
in a temporary vacancy, obviously the presumption would
be that it is a temporary appointment or for a fixed period.
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But there is no presumption that every appointment in a
permanent vacancy should be deemed to be on probation for
a period of two years, as stipulated in subsection
(2). If the
appointment is on a temporary basis or for a fixed period,
then the School Tribunal shall not assume that it is an
appointment on probation. This, however, does not mean
that under no circumstances the appointment on temporary
basis or for a fixed period can be treated as an appointment
on probation as per subsection
(2) of Section 5. It will
depend upon the facts and circumstances of each case. In a
given case, the School Tribunal may hold that though the
order of appointment shows that it is on temporary basis or
for a fixed period in a permanent vacancy, it should be
treated as one on probation and it cannot be held that the
School Tribunal has no jurisdiction to record any such
finding and to issue the consequential directions to the
Management or to grant any such declaration.
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20. The Full Bench of this Court has considered two
decisions of the Apex Court – (i) in the case of Hindustan
Education Society and others v. SK. Kaleem SK. Gulam
Nabi and others, reported in (1997) 5 SCC 152; and
(ii) in the case of Bharatiya Gramin Punarrachana Sanstha
v. Vijay Kumar and others, reported in
2003(1) Mh.L.J. 563. In para 26 of its decision, the Full
Bench has held that Section 5 of the MEPS Act was
considered in both these decisions. In the case of
Hindustan Education Society, the appointment was against
clear vacancy, but on temporary basis for a limited period of
11 months. The Court has held that it cannot be treated to
be appointment on probation. In the case of Bharatiya
Gramin Punarrachana Sanstha, the Apex Court was
considering the question of appointment on purely
temporary basis, because of nonavailability
of reserved
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candidate to fill in permanent vacancy. In the decision in
the case of Bharatiya Gramin Punarrachana Sanstha, the
Apex Court has further held that when the appointment is
made on temporary basis, the provision of subsection
(4) of
Section 5 of the MEPS Act will not be attracted.
21. The law laid down by the Apex Court in the cases
of Hindustan Education Society and Bharatiya Gramin
Punarrachana Sanstha, cited supra, cannot be disputed.
However, it was not a case before the Apex Court as regards
treating the appointment as on probation, though the order
stipulates that it is on temporary basis or for a fixed period.
The question of enforcement of obligation under
subsection
(2) of Section 5 in a case where there was
compliance of subsection
(1) of Section 5 of the MEPS Act
and no further explanation was offered by the Management
to make an appointment on temporary basis, was not
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involved. The question of jurisdiction of the School
Tribunal under Section 9 of the MEPS Act to consider and
decide the question as regards treating the appointment
made on temporary basis or for a fixed period in a
permanent vacancy, as one on probation in the given facts
and circumstances of the case, was also not involved.
Hence, both the said decisions cannot be considered to be
an authority for the proposition involved in the present case.
The power of the Management to appoint a person on
temporary basis in a permanent vacancy, cannot be
disputed, but the power of the School Tribunal under
Section 9 of the MEPS Act to find out as to whether such
appointment should be treated as one on probation, in the
facts and circumstances of the case, cannot be questioned.
22. It is the burden of an employee to come before the
School Tribunal with a definite case that he was selected and
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appointed to fill in the permanent vacancy and he was duly
qualified for being appointed in a post in question. It is for the
employee to make out a case for lifting of veil, or arbitrary,
unreasonable, or capricious exercise of discretion by the
employer in making an appointment on temporary basis or for
a fixed period in a permanent vacancy to defeat the object and
purpose of the Act, that is to provide security and stability in
the employment. In such a case, the burden will shift upon the
Management, which will have to point out the valid and
tangible reasons to make such appointment and to justify the
action by producing the relevant material on record. If the
School Tribunal is not satisfied about the genuineness and
validity of such reasons and material, it will have a jurisdiction
to pass all such orders as are necessary to protect and provide
security and stability to the employee concerned to attain the
object of enactment.
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23. Coming to the facts of the present case,
undisputedly, at the time of initial appointment on 5101989,
the petitioner was not possessing the training qualification of
B.Ed, and was merely holding the graduate degree of B.Sc in
Biology. Even on the date of making second appointment on
1771990,
the petitioner was not possessing the qualification
of B.Ed. Hence, the appointment of the petitioner though was
made on both these occasions by following the procedure
prescribed for filling in the permanent vacancy as
contemplated by subsection
(2) of Section 5 of the MEPS Act,
the same cannot be treated as one on probation.
24. The resolution of the Management produced on
record, passed on 2261991,
reproduced in para 3 of this
judgment, clearly shows that the appointment of the petitioner
was after issuing an advertisement and holding the interviews.
The petitioner was found to be fully qualified and it was
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resolved to appoint him on temporary basis until further orders
as against the earlier orders for fixed period on temporary
basis. It was pursuant to this, the resolution that the petitioner
was appointed by an order dated 2461991
on temporary basis
until further orders. It was not the case of the Management
before the School Tribunal that the appointment of the
petitioner was made in a temporary vacancy as contemplated
by subsection
(5) of Section 5 of the MEPS Act, or that it was
an appointment for a fixed period, as contemplated by
subrule
(2) of Rule 10 of the MEPS Rules. The appointment
of the petitioner was made in a permanent vacancy. The
petitioner was fully qualified for being appointed in 25% quota
of graduate teachers to teach Standards Vth to VIIIth, which are
the Middle School Classes. In view of this, it has to be held
that there was compliance of subsection
(1) of Section 5 of the
MEPS Act.
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25. Once the appointment is held to be in compliance
of subsection
(1) of Section 5 of the MEPS Act, the question,
which remains is about enforcement of statutory obligation
under subsection
(2) of Section 5, unless the Management
satisfies the Court with tangible reasons supported by
contemporaneous record and the valid and genuine reasons for
making appointment on temporary basis. There is no tangible
reason given by the Management in its reply to appoint the
petitioner on temporary basis until further orders by an order
dated 2461991.
There was no situation to make an
appointment on temporary basis in a permanent vacancy. The
order of appointment dated 24.06.1991 though states that it is
“on temporary basis until further orders”, it needs to be
construed as one on probation w.e.f. 2461991.
In such a
situation, if the petitioner has joined the post in response to
such order of appointment, no estoppel can operate against a
statute. The Management has not come forward with a case
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that the termination of the petitioner is in exercise of the
powers of the Management conferred by subsection
(3) of
Section 5 of MEPS Act. In view of this, the order of
termination, which is without any reason, cannot be sustained.
The tribunal has, therefore, committed an error in upholding
the order of termination.
26. So far as the question of back wages is concerned,
there is ample material placed on record by the Management to
show that the petitioner was gainfully employed. This fact is
not disputed by the petitioner. At any rate, there is no pleading
and proof in respect of gainful employment by the petitioner.
The petitioner is, therefore, no entitled to any back wages. The
claim for back wages is, therefore, rejected.
27. Shri Joharapurkar, the learned counsel appearing
for respondent No.4 submits that the respondent No.4 was not
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appointed in place of the vacancy caused due to the
termination of services of the petitioner and therefore, his
position cannot be disturbed. This question does not at all fall
for consideration of this Court in the present petition and if the
services of the respondent No.4 are terminated as a
consequence of this judgment, it is open for the respondent
No.4 to agitate her grievance in appropriate forum.
28. In view of above, the writ petition is allowed. The
judgment and order dated 772011
passed by the School
Tribunal, Amravati, in Appeal No. 201 of 1992A
is hereby
quashed and set aside. Appeal No. 201 of 1992A
filed by the
petitioner is allowed to the extent of setting aside his
termination as an Assistant Teacher w.e.f. 2851992
and the
respondentManagement
is directed to reinstate the petitioner
in service within a period of 30 days from today. The petitioner
shall be treated as continuous in service. The claim of the
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petitioner for back wages is rejected.
29. Rule is made absolute in above terms. No order as
to costs.
JUDGE
Rvjalit
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Print Page
subsection
(2) of Section 5 is held to be discretionary.
18. The exercise of discretion under subsection
(2) of
Section 5 has to be by keeping in view the object of
enactment and the exigencies of the administration. If the
exercise of discretion is found to be arbitrary, unreasonable,
capricious or is a colourable exercise of power to defeat the
protection in service granted by the statutory provisions,
then the Court is empowered even to invoke the principles
of “lifting of veil” to find out the real reason of making an
appointment on temporary basis, and if the action is not
found to be bona fide, an appropriate direction can be
issued to provide protection in service by treating the
appointment on probation, even if it is shown to be on
temporary basis or for a fixed period. This is the view
propounded by the Full Bench, which is in conformity with
the object and the provisions of the MEPS Act. The ratio of
the decision of the Full Bench cannot be construed as
creating absolute bar to the jurisdiction of the School
Tribunal under Section 9 of the MEPS Act, to consider and
decide the question as to whether in the given facts and
circumstances of the case, an order of appointment on
temporary basis or for a fixed period in a permanent
vacancy cannot be treated as one on probation and the
employee is entitled to protection in service, in a challenge
to the order of termination.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 4404/2011
Abdul Rafique Abdul Hamid, Vs The Yavatmal Islamia Anglo Urdu Education Society, Yavatmal,
R. K. DESHPANDE, J.
DATE : 13 th FEBRUARY, 2014 .
Citation;2014(3) MHLJ 99 Bom
1. The School Tribunal, Amravati, by its judgment
and order dated 772001,
has dismissed Appeal
No. 201 of 1992A
filed under Section 9 of the Maharashtra
Employees of Private Schools (Conditions of Service)
Regulation Act, 1977 (“MEPS Act”), by the petitioner
challenging his oral termination dated 2992012
from service
as an Assistant Teacher in the School run by the respondent
No.1Society.
2. The School Tribunal has recorded the finding
that the appointment of the petitioner was made on
temporary year to year basis and it was terminated by an
order dated 2851992
and after termination, the petitioner
has worked only for 10 days occasionally. It has been held
that the appointment of the petitioner was to teach
Standards IXth and Xth which were not recognized and
hence, he was not entitled to the benefit of Section 5(1)
and (2) of the MEPS Act to treat his appointment on
2461991
as on probation.
3. The undisputed factual position is as under :
The petitioner was initially appointed by an order
dated 3101989
as an untrained teacher w.e.f.
5101989.
By another order dated 1771990,
the petitioner
was appointed on purely temporary basis up to the end of
academic session from 1771990.
In the meeting of the School
Committee, held on 2261991,
Resolution No. 2 was passed,
which reads as under;
“It is resolved that from amongst the candidates
who appeared for personal interview for the post
of Asstt. Teachers advertised in “Lok Doot”,
Marathi Daily, Yavatmal, Dated 11th June, 1991,
Shri Abdul Rafique s/o. Abdul Hamid, Yavatmal,
be appointed as a Assistant Teacher with effect
from 24.06.91 in the Scale of Rs.
1400401600501650EB501960EB
502250EB502300602600.
His appointment is temporary, until further
orders. He is B.,Sc. B.Ed.
Proposed by : Md. Murtaza
Seconded by : Shri Ikramul Haque.
Resolution passed unanimously.”
Pursuant to the said resolution, the petitioner was issued an
order of appointment dated 2461991,
containing
clauses (2) and (3) as under :
“2. Your appointment is purely temporary until
further orders from 24..6.91 to until further
orders. After expiry of the above period, your
services will stand terminated without any notice.
3. The terms of your employment and conditions
of service shall be as laid down in the
Maharashtra Employees of Private Schools
(Conditions of Service) Regulation Act, 1977, and
the Rules made thereunder”
4. The aforesaid appointment of the petitioner was
approved by the Education Officer (Secondary), Zilla Parishad,
Yavatmal, by his order dated 3121991.
In the last column of
“tenure of appointment”, it is stated that it is from 2461991
until further orders (25% quota of Graduate Teachers).
Thereafter, the petitioner was terminated from service by an
order in writing dated 2851992.
There is no reason stated in
the order of termination except making reference to the order
of appointment and the order of approval.
5. The petitioner claims that in spite of termination
order dated 2851992,
he was permitted to work on the post
till 2991992.
It was his stand that on 1101992,
the
respondent No. 4 – Ku. Sabha Nasreen d/o Abdul Samad
Answari, was appointed in place of the petitioner. The
petitioner, therefore, preferred an Appeal No. 201 of 1992A,
alleging that the respondents have orally terminated his
services w.e.f. 1101992.
The approval to the appointment of
respondent No.4 was also granted by the Education Officer
(Secondary), Zilla Parishad, Yavatmal, on 2631992
and it is
made subject to the result of the appeal filed by the present
petitioner, which was pending before the School Tribunal.
6. To deal with findings of the School Tribunal, I
have gone through the reply filed by the Management before
the School Tribunal. It is not the case of the management that
the petitioner was appointed to teach Standards IXth and Xth
which was not then recognized. The specific stand taken by the
Management before the School Tribunal and even in response
to the present petition is as under :
“The answering respondents No. 1 to 3 submit
that, the petitioner was appointed as Assistant
Teacher on 24/6/1991 purely on temporary basis
in accordance with the resolution dt. 22/6/1991 of
the School Committee, for Middle School (Class
Vth to VIIIth)”
In view of this, the School Tribunal has committed an error in
holding that the appointment of the petitioner was to teach
Standards IXth and Xth which were not recognized on the date
of appointment of the petitioner on 2461991.
Undisputedly,
the classes of Standards Vth to VIIIth to which the petitioner
was teaching, were recognized. Hence, the School Tribunal
had jurisdiction to entertain and decide the appeal.
7. It is urged by Shri Thakkar, the learned counsel
appearing for respondentManagement,
that the petitioner was
not possessing qualifications for being appointed as an
Assistant Teacher to teach Middle School Classes from
Standards Vth to VIIIth. According to him, the qualifications
prescribed for appointment as an Assistant Teacher in the
Middle School are S.S.C., and D.Ed. He submits that the
petitioner had obtained the Bachelor Degree in Science
(B.Sc.Biology)
and had obtained training qualification of
B.Ed. on 1461991.
He submits that the petitioner was not
possessing the qualification of D.Ed., and relying upon the
decision of the Full Bench of this Court in case of Jayashree
Sunil Chavan v. State of Maharashtra and others, reported in
2000(3) Mh.L.J. 605, he has urged that B.Ed., qualification
cannot be treated as equivalent to D.Ed qualification and the
petitioner possessing B.Ed. qualification is not qualified to be
appointed as an Assistant Teacher in the Primary School.
8. The proposition of law laid down by the Full
Bench of this Court in the aforesaid judgment cannot be
disputed. It is, however, not the stand taken in the reply filed
by the respondentManagement
before the School Tribunal that
the petitioner was appointed to a post which required the
qualification of S.S.C, D.Ed., and the petitioner was not
qualified for being appointed as an Assistant Teacher to teach
Middle School Classes as he was not possessing the
qualification of D.Ed.
9. Shri Ateeque, the learned counsel appearing for
the petitioner has invited my attention to the Government
Circular dated 1712001,
which clearly states that out of four
posts of Assistant Teacher in the Middle Schools teaching
Standards Vth to VIIth, three posts are required to be filled in by
the candidates possessing S.S.C/H.S.S.C., and D.Ed., whereas
one post is required to be filed in by the candidate possessing
graduate qualification and B.Ed., which is a training
qualification. The petitioner was appointed to one post of
teacher possessing qualification of B.Sc., B.Ed., which the
petitioner had at the time of appointment. This fact is amply
proved from the approval granted in the 25% quota of graduate
teachers by the Education Officer on 3121991
to the
appointment of the petitioner. It is, therefore, held that the
petitioner was qualified for appointment to the post.
10. The next question is whether the appointment of
the petitioner by an order dated 2461991
is to be treated as
one on probation in terms of provisions of
subsection
(2) of Section 5 of MEPS Act. It is urged by
Shri Thakkar, the learned counsel appearing for the
respondentManagement
that the appointment on temporary
basis can be made even in a permanent vacancy and such a
discretion of the management is not taken away by the
provisions of subsection
(2) of Section 5 of the MEPS Act.
For this proposition, he has relied upon the decision of the Full
Bench of this Court in case of Ramkrishna Chauhan v. Seth
D.M. High School and others, reported in
2013 (2) Mh.L.J. 713.
11. The main contentions are based upon the decision of
the Full Bench in Ramkrushna Chauhan's case, cited supra,
and hence the questions, which fall for consideration in this
writ petition, are what is the ratio and what is not the ratio of
the decision of the Full Bench. The Full Bench has considered
the following question which was referred to it.
“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?”
The question has been answered by the Full Bench in the
negative, which is apparent from para 28 of the decision. It has
been held 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 MEPS Act and the School
Tribunal cannot disregard the terms and conditions of the letter
of appointment, if it is expressly provides that the appointment
is on temporary basis, for a limited term.
12. The ratio decidendi of the decision has to be
found out only on reading the entire decision and not only a
part of it. In case of any doubt arising from reading the
decision, it can be resolved by assuming that the decision was
delivered consistently with the provisions of law and therefore,
the course of procedure in departure from or not in conformity
with the statutory provisions cannot be said to have been
intended or laid down by the Court unless it has been so stated
specifically. The doubt can be resolved by looking into the
other parts of the decision and not by reading a line here and
there from the decision.
13. After going through the observations made in
various paragraphs of the decision of the Full Bench, what is
the ratio and what is not the ratio of the said decision, is
summarized as under :
(i) A conjoint reading of subsections
(1)
and (2) of Section 5 of the MEPS Act shows that
ordinarily when the selection process is
commenced and the person duly found qualified
is available and found suitable, the Management
is under obligation to appoint him on probation
to fill in the permanent vacancy.
(ii) The provision of subsection
(2) of
Section 5 of the MEPS Act is enabling and
cannot be construed as creating a legal fiction to
treat every appointment in a permanent vacancy
as on probation or as taking away the implicit
power of the Management to make a contractual
or temporary appointment even in a permanent
vacancy.
(iii) There is nothing in the provisions of subsections
(1) and (2) of Section 5 of MEPS Act to
indicate that every appointment in relation to a
permanent vacancy must be deemed to have
been made on probation for a period of two
years irrespective of the fact that the
appointment is made on temporary basis or for a
fixed period.
(iv) If an order of appointment is on
temporary basis or for a fixed period, it is not
open for the School Tribunal to assume that the
employee was deemed to be appointed on
probation.
(v) An appointment on temporary basis in a
permanent vacancy should be by way of an
interim arrangement and exception where a
person is found qualified but not suitable.
(vi) The Management cannot be permitted to
take cover under the pretext of successively
rejecting the candidates in the selection process
on the ground of unsuitability and keeping on
appointing the same person or different persons
on contractual or temporary basis for a limited
period in a permanent vacancy.
(vii) If the Management wants to appoint a
duly qualified person selected in the manner
prescribed to be appointed on temporary basis in
a permanent vacancy, it must
contemporaneously record its subjective
satisfaction or tangible reasons as to why the
candidate selected need to be appointed on
temporary basis, so that the appropriate
authority or the court of law can consider the
challenge to the appointment on temporary basis
instead of on probation.
(viii) The question as to whether an
appointment on temporary basis or for a fixed
period in a permanent vacancy is to be
considered as on probation, is a question of fact
to be pleaded and proved in appropriate
proceedings on case to case basis and it will be
open to record a finding of the colourable
exercise of power against the Management, and
an appropriate direction can be issued in such
case.
(ix) It is not the ratio of the decision of the
Full Bench in Ramkrushna Chauhan's case that
under no circumstances, the appointment made
on temporary basis in a permanent vacancy can
be treated as an appointment made on probation.
14. It is not possible to accept the contention that the
ratio at serial Nos.(ii), (iii) and (iv) and the observations
made in paras 18, 24, and 28 of the said decision are
inconsistent or contradictory with the ratio at serial Nos.(i)
and (v) to (viii) above and the observations made in the
other parts of the decision. It cannot be assumed that while
laying down the law in paragraphs 18, 24 and 28, the Full
Bench was ignorant or was not aware as to the observations
made in other parts of the decision or of the other provisions
of law. On the contrary, the observations made in several
parts of the decision have to be construed as consistent with
each other and also with the provisions of law.
15. The object of the MEPS Act is to regulate
recruitment and conditions of service of employees with a
view to providing security and stability of service to enable
them to discharge their duties towards the pupils effectively
and efficiently. The precarious conditions of the employees
in a private school prevailing prior to coming into force of
the said Act, and the object of bringing into force of the said
Act have been very succinctly and aptly highlighted by
Dr. D.Y. Chandrachud, J. (as he then was the Judge of this
Court) in his judgment in the case of Matoshri Ramabai
Ambedkar Vidyarthi Vasatigruh Trust and another v. Bharat
D. Hambir and another, reported in 2009 (2) Mh.L.J. 121, in
para 5A therein as under :
“5A. Of late, there is a growing tendency of
managements of private schools to appoint
temporary employees from year to year, even
though the vacancy is permanent and an
adequate work load is available. This leads to
grave uncertainty for teachers and places them
at the mercy of the managements. The
temporary appointment of a teacher who
questions unethical practices of the management
is promptly terminated. He or she who
questions is cast away. Those who turn a blind
eye or worse, become willing participants in a
pattern of exploitation, are retained. This is a
perversion of what was intended by the State
legislation enacted in 1977. Placing teachers in
a state of eternal uncertainty is destructive of the
cause of education. In numerous cases before
this Court, the grievance is that teachers of
aided institutions are being subjected to
extortionate demands by unscrupulous
managements. Education has become a
business and managements of private schools,
with notable exceptions, are becoming pirates in
the high seas of education. The interpretation of
section 5 of the Act must be purposive – one that
would attain the statutory object and not lead to
a negation of statutory intent. Once a
permanent vacancy arises, a management is
duty bound statutorily to fill it up by appointing
a duly qualified candidate on probation. The
vacancy must be advertised to allow equal
opportunity to eligible candidates. A regular
process of selection must be held. A duly
qualified candidate has to be appointed.
Temporary appointments can by definition be
made when the vacancy is temporary. In such
cases, the exigencies of education require that
students must be imparted education and a
vacancy even for a short period will cause
serious hardship. But temporary appointments
are an exception. Making temporary
appointments the rule is to give a tool of
subversion to the hands of unethical
managements. Temporary appointments,
followed as a practice become a tool of
subversion because they perpetuate a regime of
uncertainty about service, place the teacher in a
position of perpetual fear and deprive teacher of
the stability needed to contribute to the process
of moulding young minds. This Court must
emphasise with all the authority at its command
that a subversion of statutory intent should not
be allowed. The Court will not allow itself to be
a mute by stander to the growing trend of a lack
of ethics in the management of private schools.
Judicial intervention is warranted in order to
preserve the statutory intent.”
16. In the light of the aforesaid purpose of the
MEPS Act, the provisions of Section 5 therein, need to be
seen. The same are, therefore, reproduced below :
“5. Certain obligations of Management of
private Schools.
(1) The Management shall, as soon as
possible, fill in, in the manner prescribed every
permanent vacancy in a private school by the
appointment of a person duly qualified to fill such
vacancy:
Provided that unless such vacancy is to be filled in
by promotion, the management shall, before
proceeding to fill such vacancy, ascertain from
the Educational Inspector, Greater Bombay, the
Education Officer, Zilla Parishad or, as the case
may be, the Director or the officer designated by
the Director in respect of schools imparting
technical, vocational, art or special education,
whether there is any suitable person available on
the list of surplus persons maintained by him, for
absorption in other schools; and in the event of
such person being available, the Management
shall appoint that person in such vacancy.
(2) Every person appointed to fill a
permanent vacancy except Shikshan Sevak shall
be on probation for a period of two years. Subject
to the provisions of subsections
(4) and (5), he
shall on completion of this probation period of
two years, be deemed to have been confirmed.
Provided that, every person appointed as shikshan
sevak shall be on probation for a period of three
years.
(2A) Subject to the provisions of subsections
(3) and (4), shikshan sevak shall, on completion of
the probation period of three years, be deemed to
have been appointed and confirmed as a teacher.
(3) If in the opinion of the Management, the
work or behaviour of any probationer, during the
period of his probation, is not satisfactory, the
Management may terminate his services at any
time during the said period after giving him one
month's notice or salary or honorarium of one
month in lieu of notice.
(4) If the services of any probationer are
terminated under subsection
(3) and he is
reappointed by the Management in the same
school or any other school belonging to it within a
period of one year from the date on which his
services were terminated, then the period of
probation undergone by him previously shall be
taken into consideration in calculating the
required period of probation for the purposes of
subsection
(2).
(4A) Nothing in subsection
(2), (3) or (4)
shall apply to a person appointed to fill a
permanent vacancy by promotion or by
absorption as provided under the proviso to subsection
(1).
(5) The Management may fill in every
temporary vacancy by appointing a person duly
qualified to fill such vacancy. The order of
appointment shall be drawn up in the form
prescribed in that behalf, and shall state the
period of appointment of such person.”
17. Subsection
(1) of Section 5 does not speak to the
nature of appointment to be made whether
temporary or
for a fixed period or on probation or on permanent basis. It
does not create an obligation to appoint a person on
probation if he is appointed to fill in the permanent vacancy.
Subsection
(2) therein creates an obligation to appoint a
person on probation for a period of two years in a
permanent vacancy. This provision is held by the Full
Bench to be enabling and it does not take away the implicit
power of the Management to make appointment on
temporary basis or for a fixed period even in a permanent
vacancy. The Management may have several good reasons
for making an appointment on temporary basis in a
permanent vacancy, including that the post is reserved for a
candidate belonging to a backward class category and no
suitable candidate from such category is available, or that
the Management wants to have a wider choice of the
candidate, which is not available. Hence, the power under
subsection
(2) of Section 5 is held to be discretionary.
18. The exercise of discretion under subsection
(2) of
Section 5 has to be by keeping in view the object of
enactment and the exigencies of the administration. If the
exercise of discretion is found to be arbitrary, unreasonable,
capricious or is a colourable exercise of power to defeat the
protection in service granted by the statutory provisions,
then the Court is empowered even to invoke the principles
of “lifting of veil” to find out the real reason of making an
appointment on temporary basis, and if the action is not
found to be bona fide, an appropriate direction can be
issued to provide protection in service by treating the
appointment on probation, even if it is shown to be on
temporary basis or for a fixed period. This is the view
propounded by the Full Bench, which is in conformity with
the object and the provisions of the MEPS Act. The ratio of
the decision of the Full Bench cannot be construed as
creating absolute bar to the jurisdiction of the School
Tribunal under Section 9 of the MEPS Act, to consider and
decide the question as to whether in the given facts and
circumstances of the case, an order of appointment on
temporary basis or for a fixed period in a permanent
vacancy cannot be treated as one on probation and the
employee is entitled to protection in service, in a challenge
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to the order of termination. The question of law framed in
para 2 of the judgment of the Full Bench answered in the
negative in para 28 therein and the connected observations
made in paras 18 and 24, therefore, need to be construed in
this fashion. Any other interpretation will be contrary to the
object and the purpose of the Act and the provisions of
Section 5, and shall be in dilution of the ratio of the
decision.
19. Section 5 of the MEPS Act makes a clear
distinction between the appointment in the permanent and
temporary vacancies. Subsection
(2) deals with the
appointment to be made in a permanent vacancy, whereas
subsection
(5) deals with the appointment to be made in a
temporary vacancy. If the appointment is found to be made
in a temporary vacancy, obviously the presumption would
be that it is a temporary appointment or for a fixed period.
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But there is no presumption that every appointment in a
permanent vacancy should be deemed to be on probation for
a period of two years, as stipulated in subsection
(2). If the
appointment is on a temporary basis or for a fixed period,
then the School Tribunal shall not assume that it is an
appointment on probation. This, however, does not mean
that under no circumstances the appointment on temporary
basis or for a fixed period can be treated as an appointment
on probation as per subsection
(2) of Section 5. It will
depend upon the facts and circumstances of each case. In a
given case, the School Tribunal may hold that though the
order of appointment shows that it is on temporary basis or
for a fixed period in a permanent vacancy, it should be
treated as one on probation and it cannot be held that the
School Tribunal has no jurisdiction to record any such
finding and to issue the consequential directions to the
Management or to grant any such declaration.
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20. The Full Bench of this Court has considered two
decisions of the Apex Court – (i) in the case of Hindustan
Education Society and others v. SK. Kaleem SK. Gulam
Nabi and others, reported in (1997) 5 SCC 152; and
(ii) in the case of Bharatiya Gramin Punarrachana Sanstha
v. Vijay Kumar and others, reported in
2003(1) Mh.L.J. 563. In para 26 of its decision, the Full
Bench has held that Section 5 of the MEPS Act was
considered in both these decisions. In the case of
Hindustan Education Society, the appointment was against
clear vacancy, but on temporary basis for a limited period of
11 months. The Court has held that it cannot be treated to
be appointment on probation. In the case of Bharatiya
Gramin Punarrachana Sanstha, the Apex Court was
considering the question of appointment on purely
temporary basis, because of nonavailability
of reserved
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candidate to fill in permanent vacancy. In the decision in
the case of Bharatiya Gramin Punarrachana Sanstha, the
Apex Court has further held that when the appointment is
made on temporary basis, the provision of subsection
(4) of
Section 5 of the MEPS Act will not be attracted.
21. The law laid down by the Apex Court in the cases
of Hindustan Education Society and Bharatiya Gramin
Punarrachana Sanstha, cited supra, cannot be disputed.
However, it was not a case before the Apex Court as regards
treating the appointment as on probation, though the order
stipulates that it is on temporary basis or for a fixed period.
The question of enforcement of obligation under
subsection
(2) of Section 5 in a case where there was
compliance of subsection
(1) of Section 5 of the MEPS Act
and no further explanation was offered by the Management
to make an appointment on temporary basis, was not
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involved. The question of jurisdiction of the School
Tribunal under Section 9 of the MEPS Act to consider and
decide the question as regards treating the appointment
made on temporary basis or for a fixed period in a
permanent vacancy, as one on probation in the given facts
and circumstances of the case, was also not involved.
Hence, both the said decisions cannot be considered to be
an authority for the proposition involved in the present case.
The power of the Management to appoint a person on
temporary basis in a permanent vacancy, cannot be
disputed, but the power of the School Tribunal under
Section 9 of the MEPS Act to find out as to whether such
appointment should be treated as one on probation, in the
facts and circumstances of the case, cannot be questioned.
22. It is the burden of an employee to come before the
School Tribunal with a definite case that he was selected and
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appointed to fill in the permanent vacancy and he was duly
qualified for being appointed in a post in question. It is for the
employee to make out a case for lifting of veil, or arbitrary,
unreasonable, or capricious exercise of discretion by the
employer in making an appointment on temporary basis or for
a fixed period in a permanent vacancy to defeat the object and
purpose of the Act, that is to provide security and stability in
the employment. In such a case, the burden will shift upon the
Management, which will have to point out the valid and
tangible reasons to make such appointment and to justify the
action by producing the relevant material on record. If the
School Tribunal is not satisfied about the genuineness and
validity of such reasons and material, it will have a jurisdiction
to pass all such orders as are necessary to protect and provide
security and stability to the employee concerned to attain the
object of enactment.
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23. Coming to the facts of the present case,
undisputedly, at the time of initial appointment on 5101989,
the petitioner was not possessing the training qualification of
B.Ed, and was merely holding the graduate degree of B.Sc in
Biology. Even on the date of making second appointment on
1771990,
the petitioner was not possessing the qualification
of B.Ed. Hence, the appointment of the petitioner though was
made on both these occasions by following the procedure
prescribed for filling in the permanent vacancy as
contemplated by subsection
(2) of Section 5 of the MEPS Act,
the same cannot be treated as one on probation.
24. The resolution of the Management produced on
record, passed on 2261991,
reproduced in para 3 of this
judgment, clearly shows that the appointment of the petitioner
was after issuing an advertisement and holding the interviews.
The petitioner was found to be fully qualified and it was
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resolved to appoint him on temporary basis until further orders
as against the earlier orders for fixed period on temporary
basis. It was pursuant to this, the resolution that the petitioner
was appointed by an order dated 2461991
on temporary basis
until further orders. It was not the case of the Management
before the School Tribunal that the appointment of the
petitioner was made in a temporary vacancy as contemplated
by subsection
(5) of Section 5 of the MEPS Act, or that it was
an appointment for a fixed period, as contemplated by
subrule
(2) of Rule 10 of the MEPS Rules. The appointment
of the petitioner was made in a permanent vacancy. The
petitioner was fully qualified for being appointed in 25% quota
of graduate teachers to teach Standards Vth to VIIIth, which are
the Middle School Classes. In view of this, it has to be held
that there was compliance of subsection
(1) of Section 5 of the
MEPS Act.
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25. Once the appointment is held to be in compliance
of subsection
(1) of Section 5 of the MEPS Act, the question,
which remains is about enforcement of statutory obligation
under subsection
(2) of Section 5, unless the Management
satisfies the Court with tangible reasons supported by
contemporaneous record and the valid and genuine reasons for
making appointment on temporary basis. There is no tangible
reason given by the Management in its reply to appoint the
petitioner on temporary basis until further orders by an order
dated 2461991.
There was no situation to make an
appointment on temporary basis in a permanent vacancy. The
order of appointment dated 24.06.1991 though states that it is
“on temporary basis until further orders”, it needs to be
construed as one on probation w.e.f. 2461991.
In such a
situation, if the petitioner has joined the post in response to
such order of appointment, no estoppel can operate against a
statute. The Management has not come forward with a case
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that the termination of the petitioner is in exercise of the
powers of the Management conferred by subsection
(3) of
Section 5 of MEPS Act. In view of this, the order of
termination, which is without any reason, cannot be sustained.
The tribunal has, therefore, committed an error in upholding
the order of termination.
26. So far as the question of back wages is concerned,
there is ample material placed on record by the Management to
show that the petitioner was gainfully employed. This fact is
not disputed by the petitioner. At any rate, there is no pleading
and proof in respect of gainful employment by the petitioner.
The petitioner is, therefore, no entitled to any back wages. The
claim for back wages is, therefore, rejected.
27. Shri Joharapurkar, the learned counsel appearing
for respondent No.4 submits that the respondent No.4 was not
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appointed in place of the vacancy caused due to the
termination of services of the petitioner and therefore, his
position cannot be disturbed. This question does not at all fall
for consideration of this Court in the present petition and if the
services of the respondent No.4 are terminated as a
consequence of this judgment, it is open for the respondent
No.4 to agitate her grievance in appropriate forum.
28. In view of above, the writ petition is allowed. The
judgment and order dated 772011
passed by the School
Tribunal, Amravati, in Appeal No. 201 of 1992A
is hereby
quashed and set aside. Appeal No. 201 of 1992A
filed by the
petitioner is allowed to the extent of setting aside his
termination as an Assistant Teacher w.e.f. 2851992
and the
respondentManagement
is directed to reinstate the petitioner
in service within a period of 30 days from today. The petitioner
shall be treated as continuous in service. The claim of the
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petitioner for back wages is rejected.
29. Rule is made absolute in above terms. No order as
to costs.
JUDGE
Rvjalit
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