2014 Supreme(Bom) 358

In the High Court of Bombay at Nagpur
R.K. DESHPANDE, J.
Abdul Rafique Abdul Hamid
Versus
The Yavatmal Islamia Anglo Urdu Education Society & Others
Writ Petition No. 4404 of 2011
Decided On : 13-02-2014

Headnote:Constitution of India - Article 141 Precedent. Ratio decidendi of a decision has to be found out only on reading entire decision and not only a part of it. 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.

       Maharashtra Employees of Private Schools (Condition of Service) Regulation Act, 1977 - Section 1 - Object of Act. - Recruitment and conditions of services of employees, is to be regulated by Act, 1977. - 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, reported in 2009 (2) Mh LJ 121, in para 5-A therein as under :

       "5-A. 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."

       Maharashtra Employees of Private Schools (Condition of Service) Regulation Act, 1977 - Sections 5 and 9 - Temporary appointment on a permanent post. - Appointment on temporary basis in a permanent vacancy, cannot be deemed to be on probation for two years as stipulated in sub-section (2) of Section 5 of Act. - The question of enforcement of obligation under sub-section (2) of Section 5 in a case where there was compliance of sub-section (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 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 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.

       Maharashtra Employees of Private Schools (Condition of Service) Regulation Act, 1977 - Sections 5 and 9 - Maharashtra Employees of Private Schools (Condition of Service) Rules, 1981, Rule 10(2) - Temporary appointment to a permanent vacancy. - Burden lies on employee to make out a case of capricious exercise of discretion by employer in making an appointment on temporary basis in a permanent vacancy. - It is the burden of an employee to come before the School Tribunal with a definite case that he was selected and 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.

       Maharashtra Employees of Private Schools (Condition of Service) Regulation Act, 1977 - Section 5(2) - Power under. - Power under Section 5(2) of Act being a discretionary, has to exercised by keeping in view object of enactment and exigencies of administration. - The exercise of discretion under sub-section (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.