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High Court of Judicature at Bombay
A.M. KHANWILKAR, RANJIT MORE & K.K. TATED, JJ.
Ramkrishna Chauhan & Others
Versus
Seth D.M. High School, through the Principal & Others
Writ Petition (OS) No. 315 of 2006 With Notice Of Motion No. 175 of 2012 With Civil Writ Petition No. 7482 of 2006 With Civil Application No. 467 of 2009 & Civil Application No. 63 of 2012 With Civil Writ Petition No. 4683 of 2005 With Civil Writ Petition No. 4686 of 2005 With Civil Writ Petition No. 4687 of 2005 With Civil Writ Petition No. 8472 of 2006 With Civil Writ Petition No. 6972 of 2003
Decided on : 12-03-2013
Management, in exercise of its inherent powers can appoint a duly qualified and suitable person on contractual or temporary employment under Section 5(1) of Act. - Ordinarily, if the election process is commenced and at the end of the selection process a person duly qualified is available and is found to be suitable, the Management is under an obligation to appoint him on probation, to fill in the permanent vacancy. This mandate flows from conjoint reading of sub-sections (1) and (2) of Section 5. The only exception is, where a person identified in the selection process is duly qualified but is not found suitable by the Management, the Management is free to exercise its inherent power of making a contractual or temporary appointment. Indeed, whether a person, who had participated in the selection process, is suitable for being appointed or otherwise, is the subjective satisfaction of the Management. Merely because a person is duly qualified, that per se is not enough. The person must not only be duly qualified to fill the permanent vacancy but, must also be found to be suitable by the Management. However, the Management a cannot be permitted to take cover under the pretext of successively rejecting the candidates in selection process on the ground of suitability; and keep on appointing same person or different persons on contractual or temporary basis for limited duration, against a permanent vacancy. In cases where the Management takes a conscious decision to appoint a duly qualified person on temporary basis, for a limited period against a permanent vacancy, it must contemporaneously record its subjective satisfaction in that behalf. For, if the appointment order on contractual basis were to be made subject-matter of challenge before any Authority or Court of law, in such inquiry, it may be open to examine the controversy on the touchstone of permissibility of judicial review of such decision. If finding of colourable exercise of power by the Management is arrived at in that inquiry, appropriate direction can be issued against the Management. That will have to be examined on case to case basis.
Maharashtra Employees Private School (Conditions of Service) Regulation Act, 1978 - Section 5(1) - Appointment against a permanent vacancy.
Management has implicit power to appoint a selected candidate on temporary basis instead of appointary him on probation. - The term "as soon as possible" would mean that it has to be done within a reasonable time. That is a relative term. Nevertheless, by virtue of mandate of Section 5(1), there is implicit obligation on the Management to fulfil that requirement at the earliest, to wit, before commencement of the new academic year. That is so because, a permanent vacancy is one, which is in respect of a sanctioned post and in the case of an aided school, entitles the Management to receive commensurate grants in aid from the Government. Further, the sanctioned post for a school is prescribed by the State Authority keeping in mind the benchmark to be maintained for imparting high quality education and maintaining discipline in the school - Commensurate with the strength of the students in the school. Thus, keeping the permanent vacancy unfilled for a long time, may entail in dilution of imparting of quality education. A fortiori, though the Management has implicit power to appoint a duly qualified person on contractual employment even against a permanent vacancy but, that must be only an interim arrangement till a suitable candidate is found in the selection process.
It cannot be continued on year to year basis in succession. If the Management holds the selection process in the prescribed manner but wants to appoint the selected candidate on temporary basis must contemporaneously record tangible reasons as to why the selected candidate is not suitable to be appointed on probation against the permanent vacancy. In that event, the Appropriate Authority can consider the challenge to the appointment on temporary basis instead of probation, against a permanent vacancy. Further, the Management, receiving grants in aid, from the Government, should not and cannot be permitted to appoint a duly qualified person on temporary basis against a permanent vacancy, without holding of selection process as soon as possible in the prescribed manner. Besides, inspite of availability of a suitable candidate identified in the selection process held to fill in the permanent vacancy, the Management cannot appoint him on temporary basis against a permanent vacancy.
Maharashtra Employees Private School (Conditions of Service) Regulation Act, 1978 - Sections 5(1) and 5(2) - Appointment against permanent vacancy.
Sections 5(1), 5(2) of Act, not forbid Management from making an appointment on contractual or temporary basis for a limited duration against a permanent vacancy until a suitable candidate is s elected. - The opening sentence of sub-section (2) of Section 5 gives an impression that every person, appointed to fill a permanent vacancy, shall be on probation for a period of two years. However, this provision cannot be construed as taking away the implicit power of the Management to make a contractual employment while making a regular permanent appointment. This provision is only an enabling provision that if the Management intends to fill a permanent - vacancy, has to appoint a person duly qualified on probation for a period of two years. This part of sub-section (2), cannot be construed as a deeming provision or a legal fiction to treat every appointment made against a permanent vacancy must be on probation, notwithstanding the express terms contained in the appointment order that the appointment is contractual and temporary basis for a limited period.
Neither Section 5(1) nor 5(2) of the Act can be construed as forbidding the Management from making an appointment on contractual or temporary basis for a limited duration against a permanent vacancy until a suitable candidate is selected. Further, there is nothing in these provisions to indicate that every appointment made by the Management, in relation to a permanent vacancy, must be deemed to have been made on probation for a period of two years. There is no such legal fiction unlike in the case of a person appointed "on probation" for a period of two years, is deemed to have been confirmed, upon completion of that period. In other words, the parties would be bound by the terms and conditions stated in the letter of appointment, as there can be no presumption of appointment having been made "on probation" unless expressly stated in the appointment letter itself.
Maharashtra Employees Private School (Conditions of Service) Regulation Act, 1978 - Sections 5(1) and 5(2) - Appointment against permanent vacancy.
Management has implicit power to appoint a duly qualified person on contractual employment even against a permanent vacancy. - The governing provision regarding the conditions of service of employees of the private schools can be traced to Section 5 of the Act of 1977. Sub-section (1) thereof postulates that the Management shall fill in the permanent vacancy as soon as possible. It further provides that the appointment of a person duly qualified, to fill permanent vacancy, should be made in the manner prescribed. It is one thing to suggest that the permanent vacancy in a private school must be filled only by a duly qualified person and in the manner prescribed. But, that does not necessarily mean that the inherent powers of the Management to make appointment on contractual basis, is expressly or impliedly taken away, by law. There is nothing in this sub-section to indicate to the contrary.
Indeed, this provision obliges the Management to fill in the permanent vacancy "as soon as possible". The term "as soon as possible" would mean that it has to be done within a reasonable time.
Keeping the permanent vacancy unfilled for a long time, may entail in dilution of imparting of quality education. A fortiori, though the Management has implicit power to appoint a duly qualified person on contractual employment even against a permanent vacancy but, that must be only an interim arrangement till a suitable candidate is found in the selection process. It cannot be continued on year to year basis in succession.
Maharashtra Employees Private School (Conditions of Service) Regulation Act, 1978 - Sections 5(1) and 5(2) - MEPS Rules, 1981, Rules 8 and 9 - Appointment against permanent vacancy.
Power of Management, to appoint a person on temporary basis against permanent vacancy under Act, not affected by absence of any such provision in Rules.
Maharashtra Employees Private School (Conditions of Service) Regulation Act, 1978 - Sections 5(1) and 5(2) - Temporary and permanent vacancy.
Provisions of Section 5(5) of Act, specifically dealing with appointment against temporary vacancy, not forbid management from making temporary appointment even under Section 5(1) of Act. - The provision deals with the procedure for appointment and issuance of appointment order in the prescribed form of staff, namely, teaching as well as non-teaching staff. That sub-rule (8) merely provides for procedure for making temporary or year to year basis appointment only against a reserved vacancy. As regards the permanent vacancies or posts, such arrangement is conspicuously absent. The substantive portion is found in Section 5 of the Act. The fact that there is no provision in Rule 9 regarding the manner of making appointment on temporary or year to year basis against a permanent vacancy, does not, in any manner, affect the legal position that the Management has implicit power of appointing a person on contractual or temporary basis, while making a regular permanent appointment, in absence of an express provision forbidding it to do so.
Emphasis was then placed on Rule 10 to demonstrate that only two categories of employees are recognized by the Rules, namely, permanent or non-permanent. Further, the non-permanent employees may be either temporary or on probation. Sub-rule (2) of Rule 10 envisages that a temporary employee is one who is appointed on a temporary. vacancy, for a fixed period. As aforesaid, the Rules cannot be the basis to undo or whittle down the implicit power of the Management, in making contractual or temporary appointment, as there is no express provision in the Act of 1971, forbidding the Management from exercising that power.
A.M. Khanwilkar, J.
1) This Full Bench has been constituted by the learned Chief Justice in the light of reference made by the learned Single Judge of this Court Brother Justice Dr. D.Y. Chandrachud, in Writ Petition No. 315 of 2006, on 22nd January, 2007, by a speaking order. His Lordship in the reference order has adverted to the two line of decisions of this Court and also to the decisions of the Apex Court. His Lordship, has opined that in view of the law laid down by the Apex Court, in Hindustan Education Society and Ors. Vs. S.K Kaleem S.K. Gulam Nabi and ors. (1997 (3) Supreme 292)and the subsequent decisions in the case of Bhartiya Gramin P. Sanstha vs. Vijay Kumar and Co. (2002) 6 SCC 707 = 2003 (1) Mh. LJ 563)and Kalpataru Vidya Samastha vs. S.B. Gupta (2005) 7 SCC 524), it may not be within the jurisdiction of the Tribunal to hold that an employee, who has been appointed on temporary basis, to be deemed to be appointed on probation, on the ground that there was a clear and permanent vacancy. Further, even the Division Bench of this Court, in the case of Venkatraman Shankar vs. Jasbir Kaur Anand and Ors (Decided on 6th August, 1999 in Review Petition No. 16 of 1997, in Appeal No. 273 of 1997, in Writ Petition No. 2799 of 1990), has taken the same view. On the other hand, the exposition in two decisions of Learned Single Judge of this Court, in the case of Shri. Sairam Education Trust vs. Lalsaheb More and Anr. (Decided on 25th August, 2005 in Writ Petition No. 902 of 1993)and in the case of Shikshan Prasarak Mandal vs. Presiding Officer, School Tribunal (2005 (6) BCR 311), is contrary to the principle enunciated by the Apex Court as well as the Division Bench of this Court. In the reference order, other decisions adverted to are in the case of National Education Society’s High School vs. Lulomool Monachary (Decided on 27th March, 1987 in Writ Petition No. 1751 of 1986 = 1987(2) Bom. C.R. 521), Anil Vasant Chaudhari vs. People’s Education Society (Decided on 5th August, 1987 in Writ Petition No. 4714 of 1987), Kazi Safiruddin Muzaffaruddin vs. The State of Maharashtra and Ors. (Decided on 28th November, 2005 in Writ Petition No. 2668 of 2005), Kazi Safiruddin Muzaffaruddin vs. The State of Maharashtra (Decided on 18th April, 2006 in Appeal No. 228 of 2006 arising out of Writ Petition No. 2268 of 2005), Siddharth Charitable Trust vs. Pandurang Maruti Dhumal (Decided on 7th July, 1999 in Writ Petition No. 3488 of 1999 (This decision has been upheld by the Supreme Court in SLP (C) No.14795 of 1999 decided on 22nd November, 1999), Mathuradas Mohta College of Science, Nagpur vs. R. T. Borkar and Ors. (1997 (2) Mh. L. J. 790 = 1997 (1) ALL. M.R. 149), Kalpataru Vidya Samasthe (R) and Ors. Vs. S. B. Gupta and Ors. (2005(7) SCC 524).
2) Accordingly, the learned Single Judge directed the Registry to place the papers before the Learned Chief Justice, in order to constitute Larger Bench to answer the following question:-
“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?”
3) The brief facts, which have given rise to the filing of the said Writ Petition, in which reference to Larger Bench has been made, can be delineated as under:-
The Writ Petitioner possesses M.A., B.Ed. Degrees. He was fully qualified to teach in secondary school. He was appointed in respondent No. 1 school, as a full time Assistant Teacher from 21st July, 1999. The initial appointment order indicated that he was appointed only for the academic year, though the appointment was a7gainst a clear, open and permanent vacancy. The appointment order dated 17th July, 19
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