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IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
Sinha D.D., J.
Ashok Asramji Gabhane .... Petitioner.
Versus
Presiding Officer, School Tribunal others.... Respondents.
Writ Petition No. 2883 of 2001, decided on 2-7-2002.
Advocates appeared :
A.S. Mardikar, for petitioner.
Z.A. Haq, for respondent Nos. 2-A 3.
R.G. Agrawal A.G.P., for respondent Nos. 4 5.
Maharashtra Employees of Private Schools (Conditions of Service) Regulation (Amendment) Act, 1990 - Rule 3(6), Schedule D - Claim for permanent appointment - Petition appointed twice - Not proper appointment letters issued - Held - Permanent status sought under Section 5(1), (2) of M.E.P.S. Act - But earlier appointment letters were issued by ex-president - He was neither authorised nor delegated power to appoint - Hence those appointment orders were not valid - An appointment not valid under law cannot be given status of permanency - Petitioner could always be terminated at any time. - As far as last contention canvassed by the counsel for the petitioners in respect of sub-rule (6) of Rule 3 of the M.E.P.S. Rules is concerned, Rule 3 is not attracted in the present case primarily because it deals with qualifications for appointment of Head of the Institution. The present case is concerned with appointment of the Assistant Teacher and, therefore, by very nature of the rule, same is not applicable in the case of the petitioner. Even otherwise, by virtue of sub-rule (6) of Rule 3, power is vested in the Education Officer or the Deputy Director of Education, as the case may be, to cancel the appointment of the Head of the Institution, which is made without following the procedure laid down in the rules. That does not, take away the right of the management to terminate the services of the employee whose appointment is de hors of the relevant rules and procedure in this regard. If the appointment is void ab initio, illegal and de hors of the procedure, in that case, the management possesses power independently to terminate the services of such employee irrespective of the fact whether such power is vested in the Education Officer or the Deputy Director of Education under sub-rule (6) of Rule 3.
Maharashtra Employees of Private Schools (Condition of Service) Regulations Act, 1977 - Sections 9 and 5(2) - Assumption of deemed permanency - Appli- cant temporarily appointed at a permanent vacancy - He was assumed to be absorbed in permanent vacancy after completing his D.Ed. course - He pleaded to be deemed as permanent on ground that he had completed two years service - He could not be terminated under Section 5(1), (2) - He was not fully qualified - Also there is no proof that he was appointed against a permanent vacancy - Contention is therefore not acceptable. - In order to consider the controversy in question, it would be proper to consider the provisions of Section 5 of the Act. For the purpose of issue in question, the relevant provisions are sub-sections (1) and (2) of Section 5 of the Act. Sub-section (1) of Section 5 contemplates that the management shall fill in permanent vacancy in a private school by appointment of a person duly qualified to fill such vacancy. So the first and foremost criteria to fill up the vacancy is that the person needs to be qualified. Sub-section (1) of Section 5 contemplates that every person appointed to fill up the permanent vacancy shall be on probation for a period of two years and subject to provisions of Sections 3 and 4, on completion of probation period of two years, will be deemed to have been confirmed. Sub-section (2) carves out another criteria, i.e vacancy which is filled, should be a permanent vacancy and in such situation only, the appointment would be on probation for a period of two years. In the instant case, on the date of first appointment of the petitioner, i.e. in the year 1991, the petitioner undoubtedly was not a qualified person. Similarly, there is nothing on record to show whether vacancy was permanent or not. In the absence thereof, appointment of the petitioner could not have been on probation in the year 1991 as contemplated under the provisions of Section 5 of the Act and, therefore, contention canvassed by the counsel for the petitioner in this regard is misconceived and devoid of substance and is rejected.
2. The petition is directed against the order dated 23-3-2001 passed by the Presiding Officer, School Tribunal whereby appeal preferred by the petitioner under section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 for setting aside order of termination came to be dismissed.
3. Shri Mardikar, learned Counsel for the petitioner, states that petitioner was appointed by the respondent Management vide orders dated 20-6-1991, 16-12-1991 and 24-6-1993. The appointment was against the permanent post. The petitioner has worked for more than two years. The petitioner, therefore, is a confirmed employee and his appointment is as per section 5(2) of the Act. The learned Counsel further states that Head Master of the school vide relieving certificate dated 9-5-1993 permitted the petitioner to undertake D.Ed. course (Vacation) and it was also mentioned in the said document that after completion of the said course, the petitioner would be absorbed in service. It is contended that the petitioner has completed D.Ed. course (Vacation) in 1995. It is contended that action of the respondent Management in not allowing petitioner to resume duty from 1-8-1994 amounted to otherwise termination and, therefore, petitioner preferred appeal before the School Tribunal under section 9 of the Act against this action of the respondents. The impugned order is assailed by the petitioner on the following grounds:
i) The School Tribunal failed to consider provisions of section 5(1) and (2) of the Act whereby petitioner has acquired deemed permanency since his appointment was in a clear vacancy and on a permanent basis and petitioner was also at the relevant time qualified and, therefore, finding recorded by the School Tribunal in this regard is not sustainable in law and needs to be set aside.
ii) The respondent Management did not follow the procedure prescribed under section 4(6) of the Act and, therefore, action of the respondent Nos. 2 and 3 is also inconsistent with the above referred provisions and cannot be sustained in law. It is contended that this aspect has also not been considered by the School Tribunal and, therefore, impugned order is bad in law.
iii) The petitioner was in employment of the respondent Management as an Assistant Teacher since 1991. His appointment may be on year to year basis, but since petitioner continued to serve in employment of the respondent Management for number of years, the respondent management could not have dispensed with services of the petitioner in the manner in which they did, which is inconsistent with the provisions of the Act and Rules and, therefore, action cannot be sustained.
iv) In view of sub-rule (6) of Rule 3 of the M.E.P.S. Rules, the Education Officer is empowered to cancel the appointment made by the petitioner without following the procedure laid down in this rule. It is contended that if appointment of the petitioner as alleged by the management, was not as per the procedure contemplated under the Rules, then the Deputy Director ought to have cancelled the appointment of the petitioner and School Tribunal could not have adjudicated upon this aspect of the matter. In order to substantiate the contentions, reliance is placed by the learned Counsel for the petitioner on the judgment dated 6-2-2002, of this Court in Writ Petition No. 610/2002.
4. In order to substantiate the contentions, reliance is placed on the judgments of this Court in (Laxman Mahadev Teli v. Principal, Shri Pancham Khemraj Mahavidyalaya and others)
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