1992 Supreme(MP) 412

D.M. Dharmadhikari and M. V. Tamaskar, JJ.
Kiran Tiwari Ku.) v. Principal, St. Thomas H.S. Vidyalaya
M.P. No. 1570 of 1991 (J); Decided on 15.7.1992.

Headnote:(1) Ashaskiya Shikshan Sanstha (Adhyapakon Tatha Anya Karmchariyon Ki Bharti) Niyam, 1979 (M.P.) -- R. 4 (a) -- provision under -- is applicable to appointee for a short term -- recruitment without considering his absorption is illegal.

        (2) Ashaskiya Shikshan Sanstha (Adhyapakon Tatha Anya Karmcharlyon Ki Bharti) Niyam, 1979 (M.P.) -- R. 5 (1) -- expression "any other reason whatsoever" -- makes it evident that intimation required to be given in the prescribed form should include case of termination of teacher appointed for fixed term.

        (3) Constitution of India -- Art. 16 (2) -- male preferred in advertisement for appointment -- mandate violated.

       ¼1½ v‘kkldh; f‘k{k.k laLFkk ¼v/;kidksa rFkk vU; deZpkfj;ksa dh HkrhZ½ fu;e] 1979 ¼e-iz-½ & fu- 4¼d½ &ds v/khu mica/k & fu;qDr O;fDr ij FkksM+h vof/k ds fy, ykxw gksrs gSa & mlds vkesyu ij fopkj fd, fcuk HkrhZ voS/k gSA

       

        ¼2½ v‘kkldh; f‘k{k.k laLFkk ¼v/;kidksa rFkk vU; deZpkfj;ksa dh HkrhZ½ fu;e] 1974 ¼e-iz-½& &fu- 5¼1½ & vfHkO;fDr ^^dksbZ Hkh vU; dkj.k** & ls Li"V gS fd fofgr iz:i esa nh tkus okyh visf{kr izKkiuk esa fu;r vof/k ds fy, fu;qDr v/;kid dh fu;qfDr dh lekfIr dk ekeyk lfEefyr fd;k gh tkuk pkfg,A

       

        ¼3½ Hkkjr dk lafo/kku &vuq- 16¼2½ & fu;qfDr ds fy, foKkiu esa iq#"k dks vf/keku & vkns‘k dk vfrdze.k gqvkA

        By this petition under Article 226 of the Constitution, the petitioner challenges the impugned order dated 5th April, 1991 (Annexure P.8) terminating her services from the school and appointment of respondent No.3 in her place under an order of appointment issued on 15.1.91 (Annexure R-2).

        It is not in dispute that the petitioner continued to serve as teacher in the school in short-term appointment between 2nd July, 1990 to 15th May, 1991. The first contention raised by the learned counsel on behalf of the petitioner is that in accordance with the provisions of Rules 3, 4 and 5 of the M.P. Ashaskiya Shikshan Sanstha (Adhyapakon Tatha Anya Karmchariyon Ki Bharti) Niyam, 1979, (for short the rules) framed under section 10 of the Act, the petitioner has a right of being considered for absorption in the service of the school and the institution could not have straightway resorted to the mode of direct recruitment, and then select and appoint respondent No. 3 on the basis of the impugned advertisement (Annexure P-5) issued for the purpose. With regard to the first contention, the reply on behalf of the learned counsel appearing for the respondents 1 and 2 is that rule 4 (a) can have no application to the case of such teachers, who were appointed for a short duration and subsequently, terminated on expiry of their terms of service. The contention on behalf of the respondents is that the mode of appointment by absorption of terminated teachers of other institutions is required to be resorted to before adopting the mode of direct recruitment only in Cases of such teachers, who were regularly appointed in accordance with the provisions of the rules; but later were terminated from service.

        Held: On closer perusal of rules 3, 4 and 5, the contention on behalf of the respondents cannot be accepted and the one raised on behalf of the petitioner has to be given effect to.

       

        From rule 5 (1), it may be noted that intimation with regard to the termination of teachers and other employees have to be sent to the concerned authority in Form l. The rule clearly states that the termination may be either as a result of the closure of the institution or abolition of post or for "any other reasons whatsoever." The use of expression" for any other reasons whatsoever in rule 5 (1) of the above quoted rule makes it evident that the intimation required to be given in the prescribed form should include cases of termination of teachers, who may have been appointed for a fixed term or tenure. Reading the entire body of the rules, the scheme appears to be that a sort of pool has to be maintained on the basis of information received from all State-aided institutions of the terminated or dismissed teachers rendered surplus. In case of requirement of filling up the vacancy of teacher in an institution governed by the Act, proviso to rule 4 of the rules mandates the appointing authority to adopt the mode of absorption of teachers terminated from other institutions on priority before resorting to other modes of recruitment. The Act and the rules made thereunder constitute a piece of beneficial legislation with the sole purpose of regulating the service conditions of teachers of institutions aided by the State and to give relief of re- appointment to the teachers terminated from other institutions for whatever reasons, including due to closure of institutions or abolition of posts. The application of the rule, therefore, cannot be restricted to only a class. of terminated teachers, who may have been regularly appointed. The interpretation sought to be placed on the rules on behalf of the respondents, therefore, cannot be accepted. The petitioner, whose services were terminated due to expiry of her term of service, is also covered by the provisions of rules 4 and 5 of the rules and she could not have been denied the opportunity of being considered for absorption in the service of the institution. Admittedly, in this case, the respondents have not at all considered the petitioner for absorption in accordance with the provisions of rule 4 read with the proviso there under. The appointment made by direct recruitment of respondent No.3, therefore, has to be set aside.

        The second contention raised on behalf of the petitioner, in assailing the appointment of respondent No.3, is that, in the impugned advertisement (Annexure P-5), the vacant post has been proposed to be filled by giving preference to males. The petitioner being a lady teacher with past service in the school to her credit was thus eliminated from even being considered for direct recruitment only on the ground of hers ex. The contention is that the advertisement (Annexure P-5) giving preference to males for appointment as teacher in the school is violative of the provisions of Article 16 (2) of the Constitution of India as opportunity of seeking public employment has been refused to her on the ground of sex alone.

        Learned counsel appearing for the respondents supported the terms of the advertisement (Annexure P-S) stating that mere giving preference to males does not make the recruitment of respondent No.3 invalid. It is argued that under the terms of the advertisement, famale candidates were not prohibited from applying for the post and only preference was expressed to be given to males. The advertisement is, therefore, said to be not hit by the provisions of Article 16 (2) of the Constitution of India.

        In the instant case, the respondents could not dispute that the petitioner had also applied for the post pursuant to the advertisement, but she was not called for interview. Respondent No.3, along with his return, has filed a copy of the interview call letter issued to him (marked as Annexure R-3-1). The contents of the above call letter shows that respondent No. 3 was invited to make an application and to appear for interview. It is, thus, clear that not only preference has been given to male, but favour has been done to respondent No.3 individually. There is sufficient justification for the petitioner to criticise the conduct of the school authorities that respondent No.3 was favoured with the appointment.

        The advertisement inviting applications for direct recruitment to the post only mentions that males will be preferred. But in fact, the petitioner, who was otherwise qualified for the post, was not even called for interview, merely because she happens to be a woman. The action of the respondents, therefore, clearly offends Article 1? (2) of the Constitution of India.

       

        Learned counsel for\the petitioner in his last submission submitted that, keeping in view the petitioners past service, in the institution, she was entitled to be regularised. The counsel appearing for respondents 1 and 2, representing the authorities of the school, made an attempt to show that the petitioners work and performance were far from satisfactory. This argument on behalf of the respondents cannot be accepted. There was no allegation made against her of inefficiency in work. The impugned order of termination is also not based on any allegation of inefficiency on the part of the petitioner. It is a case of termination simpliciter due to expiry of the terms of her appointment.

       

        So far as the claim of regularisation set up by the petitioner is concerned, proviso to rule 4 requires first priority to be given to the mode of absorption of teachers terminated from the same or other institutions. The petitioner, therefore, can claim only a right of being considered for absorption. She cannot claim regularisation outside the rules and only on the basis of her past services.

       

        The question that remains for decision by us is as to what relief the petitioner is entitled to on the basis of a finding in her favour that she was wrongly excluded from being considered for appointment by the mode of absorption in the services of the school. It is clear that services of a teacher were necessitated in the institution. Mode of direct recruitment was, therefore, resorted to. We have found that the appointment of respondent No. 3 was in breach of the rules. The petitioner can claim only the right of being considered for absorption. But since there would be immediate vacancy as a result of quashing the appointment of respondent No.3. We consider it fit to quash the termination of the services of the petitioner and direct her continuance in service against the post hither to held by respondent No.3 till respondent Nos. 1, 2 and 4 consider the case of the petitioner for absorption in the service of the school in accordance with the rules.

       Petition allowed.