2014 Supreme(Bom) 325

In the High Court of Bombay at Nagpur
R.K. DESHPANDE, J.
Bhagwan Mahavir Primary School, Mahavir Nagar Circle Road, through its Head Master & Another
Versus
Learned Presiding Officer, School Tribunal, Amravati Division & Others
Writ Petition No. 1654 of 2012
Decided On : 11-02-2014

Headnote:Constitution of India - Article 16 - Qualification for appointment to post of Assistant Teacher. - Since Diploma of Teaching from Sagar University is held to be equivalent to Diploma of Education in State of Maharashtra hence candidate possessing Diploma of Teaching eligible for appointment to post in question. - It was the stand taken by the Management that the respondent No. 2 was possessing the qualifications of S.S.C. and had acquired Diploma of Teaching from the Sagar University at the time of his initial appointment, which was not treated as qualification equivalent to Diploma of Education in the State of Maharashtra. Hence, the respondent No. 2 was treated as a candidate not possessing the training qualification. Hence, the candidates possessing Diploma of Teaching conducted by the Sagar University prior to 14.6.1999, are required to be considered as eligible for being appointed as Primary Teachers in the State of Maharashtra. It is not the case that the respondent No. 2 was paid salary as an untrained Teacher, but it is a fact that he was paid as trained Teacher. The finding of the School Tribunal that the respondent No. 2 was qualified for being appointed as an Assistant Teacher in the Primary School, cannot be faulted.

       Constitution of India - Article 311 - Termination of service of Teacher. - Denial of case of Management that termination was result of accepting resignation of petitioner by Tribunal based upon appreciation of evidence, calls for no interference. - It is not the case of the Management that the services of the respondent No. 2 were terminated on the ground that the Management did not find his work or behaviour during the period of probation as satisfactory, in exercise of its power under sub-section (3) of Section 5 of the MEPS Act. On the contrary, the Management came forward with a case before the School Tribunal that the respondent No. 2 had tendered resignation in his own handwriting on 21.11.2000, which was accepted by the School Committee in its meeting dated 10.12.2000. Neither the original resignation nor the copy of the resolution accepting the resignation of the respondent No. 2 are placed on record. The School Tribunal has not accepted the case of the Management that the termination was as a result of accepting resignation dated 21.11.2000, by resolution of the Management passed on 10.12.2000. The view taken by the School Tribunal is a possible view of the matter based upon appreciation of evidence, which does not call for any interference.

       Maharashtra Employees of Private Schools (Condition of Service) Regulation Act, 1977 - Sections 4 and 5 - Appointment to post of Assistant Teacher. - Petitioner appointed to post of Assistant Teacher on probation under Section 5(1) of Act, entitled to protection of treating him as acquired deemed confirmation upon completion of probation period. - In a situation, where there is compliance of sub-section (1) of Section 5 of the MEPS Act is established, the Management has to come forward before the Court with a definite stand as to why the appointments are being made on temporary basis in succession on 19.6.1997, 21.6.1998, 17.1.1999 and 1.7.2000. In the absence of any cogent explanation and reason, the Court can treat the appointment as on probation even if the order of appointment states that it is on temporary basis. This is to enforce the statutory obligation of the Management created under sub-section (2) of Section 5 of the MEPS Act to fill in a permanent vacancy by appointing a duly qualified person on probation for a period of two years. This is what has been held by the School Tribunal in the judgment and order impugned. Hence, no fault can be found.

       Once the initial appointment of the respondent No. 2 on 19.6.1997 is treated as on probation, then sub-section (4) of Section 5 of the MEPS Act shall come into operation, and the subsequent appointments of the respondent No. 2 being within a period of one year from the date of his earlier termination, without there being change in the circumstances, the service rendered thereafter will have to be counted towards the period spent on probation, as contemplated by sub-section (2) of Section 5 and there is no question of operating estoppel against the respondent No. 2, as the statutory provision of sub-section (4) permits such course to be adopted. The employee, therefore, gets protection of treating him as acquired deemed confirmation in service, upon completion of two years‘ service on probation, as contemplated by later part of sub-section (2) of Section 5.

       Maharashtra Employees of Private Schools (Condition of Service) Regulation Act, 1977 - Section 5 - Constitution of India, Article 16 - Nature of appointment. - Where petitioner was appointed to post of Assistant Teacher after following due procedure prescribed for permanent appointment under Section 5 of Act therefore appointment of petitioner is permanent in nature. - The School Tribunal has held that the respondent No. 2 had worked on the post of an Assistant Teacher from 1.7.1997 to 31.3.2001, when he was not allowed to sign the muster roll. The finding is recorded that the appointment of the respondent No. 2 was in a clear and permanent vacancy, and though the order of appointment stipulated that it was on temporary basis, his initial appointment on 1.7.1997 was to be treated as on probation in terms of Section 5 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 ("the MEPS Act"). The further finding is also recorded that the appointment was made after following due procedure prescribed for it and the respondent No. 2 was possessing the qualifications necessary for appointment to the post of an Assistant Teacher in a Primary School. The stand taken by the petitioner-Management that the respondent No. 2 resigned from the post on 21.11.2000, which resignation was accepted on 10.12.2000, has been rejected.

       Though the orders of appointment issued on every occasion show that they are on temporary basis for a fixed period, the School Tribunal has, after taking into consideration the material available on record, recorded the finding that the appointment was made in a permanent vacancy after following the procedure prescribed for that purpose under Section 5 of the MEPS Act.

       It was not the stand of the management that the appointment was in a temporary vacancy, as contemplated by sub-section (5) of Section 5 of the MEPS Act. On the basis of material on record, the finding is recorded that the respondent No. 2 was appointed to fill in the permanent vacancy. There is no perversity in recording such finding.