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2015 Supreme(SC) 1016
SUPREME COURT OF INDIA
JAGDISH SINGH KHEHAR, R. BANUMATHI, JJ
JELES EDUCATION SOCIETY & ORS. – APPELLANTS
VERSUS
R.T. BHITALE – RESPONDENT
CIVIL APPEAL No.4606 OF 2006
Decided On : 30-09-2015
IMPORTANT POINT
Person appointed as teacher should be duly qualified. In absence of any duly qualified candidate alternative candidate can be temporarily appointed on year to year basis.
Depending upon exigencies of work a temporary teacher can be denied leave to contest election and asked to resign.
Headnote:(a) Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 – Section 5 r/w rule 9, Maharashtra Private School Employees (Condition of Service) Rules, 1981 – Appointee required to be duly qualified – Vacancy created in a permanent post should be filled on permanent basis – In absence of suitable candidate, however, School management could fill up the post temporarily on a year to year basis – Respondent not duly qualified not eligible to be appointed on permanent basis – He was rightly terminated on 30.04.1988. (Para 14, 18, 19, 20, 21)
(b) Maharashtra Private School Employees (Condition of Service) Rules, 1981 – Rule 42(3) – Respondent seeking leave for contesting election – School management, in view of impending annual examination, advising him to resign – Respondent neither resigning nor attending to his duties – Management rightly terminated his services 16.02.1995. (Para 22, 23)
Facts of the case:
Appellant No.1 – Jeles Education Society runs and operates the Mahatma Gandhi Vidyamandir School.
One Raut was engaged by the school, as a trained Graduate Teacher, to teach the subjects of English and Sanskrit. For reasons which are not relevant for the present controversy, Raut tendered his resignation, in the middle of the academic session 1989-90. The same was accepted on 26.07.1989.
The appellant-society issued an advertisement on 04.12.1987, seeking to fill up the vacancy created as a result of the resignation of Raut.
The respondent-R.T.Bhitale applied for the post. He was selected, and was issued the appointment order.
In consonance with the letter of appointment dated 07.12.1987, his appointment came to an end on 30.04.1988. He was intimated about his termination on the same day i.e., on 30.03.1988.
The respondent preferred an appeal assailing the order dated 30.04.1988 before the School Tribunal which accepted the appeal.
The High Court as an interim measure, required the appellant-society to engage the respondent herein, on a year to year basis, without prejudice to the rights and contentions of the rival parties. The respondent was continued in the employment of the appellant-society, on a year to year basis.
The respondent desired to contest elections in January, 1995. He sought leave for the above purpose. The request of the respondent, for leave was declined by the appellant-society. The appellant- society advised the respondent to tender his resignation, if he desired to contest the above election. Despite that the respondent did not attend to his duties, and any how contested the above election. He also did not tender his resignation.
The appellant-society yet again terminated the services of the respondent, by an order dated 16.02.1995.
The above order of termination was again assailed by the respondent before the School Tribunal,. The School Tribunal by an interim order stayed the order of termination. However the appeal was ultimately dismissed in default. Request for restoration was declined.
The respondent preferred Writ Petition which was allowed and restoration was ordered. Eventually the School Tribunal dismissed the appeal filed by the respondent.
The High Court collectively disposed of Writ Petitions of 1993 filed by the appellant-society, and Writ Petition of 2004 preferred by the respondent. The High Court held that the School Management was not justified in requiring the respondent to tender his resignation under Rule 42(3) of the 1981 Rules, on account of the fact that he was a permanent employee, and not a temporary employee.
Finding of the Court:
Both the orders of termination dated 30.03.1988 and 16.02.1995 were in consonance with law.
Result:
Appeal allowed.
JUDGMENT
JAGDISH SINGH KHEHAR, J.
1. Appellant No.1 – Jeles Education Society (hereinafter referred to as `the appellant-society') runs and operates the Mahatma Gandhi Vidyamandir School. The school is upto Class-X. One Raut was engaged by the school, as a trained Graduate Teacher, to teach the subjects of English and Sanskrit. For reasons which are not relevant for the present controversy, Raut tendered his resignation, in the middle of the academic session 1989-90. The same was accepted on 26.07.1989.
2. The appellant-society issued an advertisement on 04.12.1987, seeking to fill up the vacancy created as a result of the resignation of Raut. An English translation of the aforesaid advertisement, is being reproduced hereunder:
“WANTED
Wanted trained Graduate Teacher to teach English & Sanskrit. Priority for Backward Class. Contact immediately with certificates. Mahatma Gandhi Vidyamandir, Bandra (E), Mumbai-51.”
3. It is apparent that the appellant-society was looking out for a Trained Graduate Teacher to teach English and Sanskrit. It also emerges from the advertisement, that the choice for appointment was to be made from out of backward class candidates, if possible. The respondent-R.T.Bhitale, who belonged to the category of 'Other Backward Class' which is also amongst the backward classes, recognized for the present process of appointment, applied for the post of Trained Graduate Teacher, in furtherance of the advertisement extracted above. He was selected, and was issued the following appointment order on 07.12.1987 :
“With reference to your application dated 4.4.1987, I have the pleasure to inform you that you are hereby appointed as an Asstt. Teacher on Rs.365/-per month in the scale of Rs.365-15-500- 20-660-EB-20-760 with effect from 7.12.1987 or the date you report for duty. You will be entitled to allowance such as compensatory local allowances, House Rent Allowance and dearness allowance as specifically sanctioned by Government from time to time.
2. Your appointment is purely temporary for a period of (not legible) months from 7.12.1987 to 30.4.1988 (not legible). After expiry of the above period your services shall stand terminated without any notice or (not legible).
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. You shall have to undergo a medical examination by Dr.(not legible) within three months from the date of joining the post. Your appointment shall be conditional pending the receipt of physical fitness certificate from the doctor whose name is mentioned above.”
(emphasis is ours)
4. It is therefore apparent, that the respondent's appointment, was for the remaining period of the academic session 1987-88, and would culminate on 30.04.1988. The School Management Committee took a decision on 29.03.1988, not to continue with the respondent any further, and accordingly, in consonance with the letter of appointment dated 07.12.1987, his appointment came to an end on 30.04.1988. He was intimated about his termination on the same day i.e., on 30.03.1988.
5. Dissatisfied with the order, by which his services were dispensed with, the respondent preferred an appeal assailing the order dated 30.04.1988 under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter referred to as `the 1977 Act’). The position adopted by the respondent was, that his appointment vide order dated 07.12.1987 was liable to be considered as permanent, since the same was against a permanent vacancy, created by the resignation of Raut. It was also his contention, that he belonged to the reserved category, for which the post had been advertised, and as such, there was no justification whatsoever for not treating his appointment as permanent.
6. The above position adopted by the respondent, was sought to be contested by the appellant-society
