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In the High Court of Bombay at Nagpur
R.K. DESHPANDE, J.
Nagpur Shikshan Mandal, through its Secretary & Another
Versus
Varsha Vinod Sayam & Another
Writ Petition Nos. 540 of 2014
Decided on: 05-05-2014
Maharashtra Employees of Private Schools (Condition of Service) Regulation Act, 1977 - Section 5(1) - Maharashtra Employees of Private Schools (Condition of Service) Rules, 1981, Rule 26(1)(i) - Protection in service to part time teachers. - When a part time teaches is confirmed in a permanent vacancy then he is entitled to protection in service upon retrenchment. - It has already been held that if a part time teacher or a Shikshan Sevak appointed in a part time permanent vacancy is continued in service beyond a period of two or three years, as the case may be, upon satisfactory completion of service as probationer, he acquires a status of a deemed confirmed employee. Such employee needs to be treated as a part time permanent employee. Such employee is qualified for being appointed as a full time teacher. He is entitled to the pay-scale at half rate of a full time teacher. As per the scheme of Shikshan Sevak, contained in para 9 of the Government Resolution dated 10.6.2005, which is incorporated under Section 5 of the MEPS Act, by way of an amendment in 2012, such a teacher needs to be absorbed as a full time teacher on availability of such a post in the concerned subject. There is no reason to hold that such a part time employee cannot be treated as a permanent employee under sub-rule (1) of Rule 26 of the MEPS Rules.
In terms of the aforesaid provision, even a full time teacher rendered surplus on account of reduction of establishment owing to reduction in the number of classes or division, can be asked to work on a part time post. If such part time employee is again rendered surplus, then he becomes entitled to protection under Rule 26. It is, therefore, held that even a part time teacher confirmed in a permanent vacancy, is entitled to get protection in service in terms of Rule 26(1)(i) of the MEPS Rules, upon retrenchment from service on account of reduction in the number of classes or divisions.
Maharashtra Employees of Private Schools (Condition of Service) Regulation Act, 1977 - Section 5(2) - Deemed confirmation at part-time teachers. - A part-time teacher working in part-time permanent vacancy, can acquire a deemed confirmation in service in terms of Section 5(2) of Act. - The provision of sub-section (1) of Section 5 does not make any distinction between a part time and a full time permanent vacancy. It cannot, therefore, be read in a restricted sense. There can be a part time appointment in a part time permanent vacancy and a full time appointment in a full time permanent vacancy. Chapter III in Schedule "B" under the MEPS Rules deals with the qualifications of a full time and a part time teachers, which are the same. Thus, it is essential that a part time teacher should also possess the qualifications for being appointed as a full time teacher. There is no basis to hold that an appointment of a part time teacher is not governed by sub-section (1) of Section 5 of the MEPS Act. If there is a permanent vacancy of a part time teacher, then recruitment therein shall be governed by sub-section (1) of Section 5 of the MEPS Act, and such appointment can be treated as an appointment in a permanent vacancy
Maharashtra Employees of Private Schools (Condition of Service) Regulation Act, 1977 - Section 5(2-A) - Confirmation of part time teacher in service. - A part time teacher, deemed to be confirmed in service upon completion of satisfactory service of three years in terms of Section 5(2-A) of Act. - An appointment in a permanent vacancy of a part time teacher or a full time teacher may be made on probation in terms of sub-section (2) of Section 5 of the MEPS Act. If the appointment is as a teacher other than Shikshan Sevak, it shall, upon continuation in service after satisfactory completion of two years’ period of probation, be deemed to have been confirmed. In case of an appointment as a Shikshan Sevak in a permanent vacancy, either as a full time teacher or a part time teacher, it shall be deemed to have been confirmed upon continuation in service, after completion of satisfactory service of three years in terms of sub-section (2-A) of Section 5 of the MEPS Act. It cannot, therefore, be said that a part time teacher working in a part time permanent vacancy cannot acquire a deemed confirmation in service.
Maharashtra Employees of Private Schools (Condition of Service) Regulation Act, 1977 - Section 5(5) - Appointment of a part time teacher. - Appointment of a part time teacher can be treated as an appointment on temporary basis only if it is made in a temporary vacancy in terms of Section 5(5) of Act. - Every appointment of a part time teacher cannot be considered to be an appointment on temporary basis. It will depend upon the nature of vacancy available. The appointment of a part time teacher can be treated as on temporary basis only if it is made in a temporary vacancy, as contemplated by sub-section (5) of Section 5 of the MEPS Act. If an appointment as a part time teacher is made in a permanent vacancy, it cannot be treated as an appointment on temporary basis, unless there are other reasons available to treat such appointment as on temporary basis.
Maharashtra Employees of Private Schools (Condition of Service) Regulation Act, 1977 - Section 5(5) - Appointment as a part time teacher. - If an appointment as a part time teacher is made in a permanent vacancy, it cannot be treated as an appointment on temporary basis. - The appointment of a part time teacher can be treated as on temporary basis only if it is made in a temporary vacancy, as contemplated by sub-section (5) of Section 5 of the MEPS Act. If an appointment as a part time teacher is made in a permanent vacancy, it cannot be treated as an appointment on temporary basis, unless there are other reasons available to treat such appointment as on temporary basis.
Maharashtra Employees of Private Schools (Condition of Service) Rules, 1981 - Rule 26 - Retrenchment of employee. - Principle of seniority and provisions of Rule 26 must be following while retrenching an employee from service. - It is the requirement of Rule 26 of the MEPS Rules to follow the principle of seniority. It is, therefore, for the Management and the Deputy Director of Education to decide the seniority and follow the provision of Rule 26 of the MEPS Rules in retrenching the employee from service. The provision of Rule 26(2)(iii) of the MEPS Rules prohibits the Management from retrenching the employees, who are rendered surplus, unless there is an order of absorption.
Maharashtra Employees of Private Schools (Condition of Service) Rules, 1981 - Rule 26(1)(i). - See Maharashtra Employees of Private Schools (Condition of Service) Regulation Act, 1977, Section 5(1).
Maharashtra Employees of Private Schools (Condition of Service) Rules, 1981 - Rule 26(1)(i) - Entitlement to protection under. - Even a part time teacher confirmed in a permanent vacancy, is entitled to get protection in service in terms of Rule 26(1)(i) of Rules 1981 upon retrenchment from service. - In terms of the aforesaid provision, even a full time teacher rendered surplus on account of reduction of establishment owing to reduction in the number of classes or division, can be asked to work on a part time post. If such part time employee is again rendered surplus, then he becomes entitled to protection under Rule 26. It is, therefore, held that even a part time teacher confirmed in a permanent vacancy, is entitled to get protection in service in terms of Rule 26(1)(i) of the MEPS Rules, upon retrenchment from service on account of reduction in the number of classes or divisions. Question No. (4) is, therefore, answered accordingly
1. Rule. Heard finally by consent of the learned counsels appearing for the parties.
2. The challenge in this petition is to the judgment and order dated 21-10-2013 passed by the School Tribunal, Nagpur, allowing Appeal No.STN/05/2013 filed by the respondent No.1 under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (“MEPS Act”) challenging her termination from service by an order dated 31-10-2012. The School Tribunal has set aside the order of termination, and the petitioners are directed to reinstate the respondent No.1 in service as Part Time Teacher with continuity. The relief of full back wages has been denied.
3. The controversy before the School Tribunal was whether the respondent No.1, who was appointed as a Part Time Teacher on 22-9-2003, to teach the Junior College classes, acquired the status of a permanent employee, and, therefore, she was entitled to a protection in service, as contemplated under Rule 26 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (“MEPS Rules”) while retrenching her on account of abolition of post by an order dated 31-10-2012 with effect from 1-11-2012. The protection contemplated under Rule 26 is in respect of getting three months' notice of retrenchment, following the principles of seniority in retrenching junior-most employee, obtaining prior approval of the Deputy Director of Education before effecting retrenchment, absorption by the Deputy Director of Education in the alternate employment, and protection of her pay drawn on the date of retrenchment.
4. The School Tribunal has held that the appointment of the respondent No.1 was made by following the procedure prescribed for making an appointment in a clear and permanent vacancy as a Part Time Teacher. The initial appointment was as a Shikshan Sevak on 22-9-2003 and upon completion of her probation period of three years satisfactorily, she was continued in service till the date of retrenchment on 31-10-2012. The respondent No.1 had, therefore, acquired the status of a permanent employee and hence she was entitled to protection in service.
5. The facts in detail are as under:
The respondent No.1 worked as a Part Time Teacher to teach the subject Marathi to Standards XI and XII of the Junior College run by the petitioner-Society from 22-9-2003 till 11-1-2012, when her services were terminated on the ground of reduction in the strength of the students and classes. This was the subject-matter of challenge before the School Tribunal under Section 9 of the MEPS Act. The case of the respondent No.1 was that she was possessing the qualifications of M.A. (Marathi), B.Ed., and as such she was fully qualified for being appointed as Teacher in a Junior College. There was a clear and permanent post of a Part Time Teacher in the subject Marathi, which was advertised in the local newspaper, showing that it was reserved for the Scheduled Tribe category. The names of suitable candidates from Scheduled Tribe category were also invited from the Employment Exchange Department of the University, which forwarded her name for selection and appointment in response to the advertisement/requisition. She was found most suitable candidate possessing the caste validity certificate of a Scheduled Tribe category and was, therefore, selected and appointed by an order dated 24-9-2003 as a Part Time Shikshan Sevak for a period of three years on probation. This appointment was also approved by the Deputy Director of Education on 61-1-2003, and upon completion of the probation period satisfactorily, she acquired the status of a deemed confirmed employee in service. She did not dispute the reduction in the strength of students and classes, but claimed that she was entitled to protection in service in terms of Rule 26 of the MEPS Rules while retrenching her services on account of reduction in the number of classes of Standard XI. It was also her case that one post of Full Time T
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