Surya Education Society v. Girija Pandey

1. This Letters Patent Appeal is directed against the judgment and order dated 27th September 2007 (hereinafter referred to as “impugned order”) passed by the learned single judge in Writ Petition No. 3349/1998 allowing the Petition filed by the Respondent No.1 thereby quashing and setting aside the order of the school tribunal dated 18th December 1996 on an appeal filed under Section 9(a) of the Maharashtra Employees of Private Schools (Conditions of Service Regulation) Act, 1977 (hereinafter referred to as “MEPS Act”). By the aforesaid impugned order the Appellant Society/school was directed to reinstate Respondent No.1 in service with continuity of service and full back-wages.

2. Briefly the facts are:i. The Appellant Society/school is a fully government aided school having no other source of income except the annual grant received by them from the government. The Appellant Society/school utilizes this grant/aid received from the government for payment of salaries to the sanctioned strength of 16 teachers and 2 employees and the Appellant Society/school is not allowed to divert the said amount for any other purpose. On 12th June 1989 Respondent No.1 was appointed as a temporary teacher in the Appellant Society/school as Respondent No.1 is qualified as B.A. B.Ed. It is however Respondent No.1’s contention that she was appointed against a clear permanent vacancy in the primary section. However without following the selection she came to be appointed purely on a temporary basis. ii. After she joined the service, Respondent No.1 suffered from jaundice and was under treatment. On 14th December 1991, i.e. the period of about 30 months from her appointment Respondent No.1 abandoned the service without informing the Appellant Society/school and thereafter never joined the service of Appellant Society/school. On 27th December 1991, 6th January 1992 and 27th January 1992, the Appellant Society/school issued letters to Respondent No.1 calling upon her to resume her duty immediately, however to no avail. iii. On 31st January 1992 and 5th March 1992 i.e. after a period of 48 days and three months respectively, from abandoning her service Respondent No.1 submitted medical certificates to the Appellant Society/school by Registered Post A.D. which were received by the Appellant Society/school on 5th February 1992 and 14th March 1992 respectively. However, it is the Appellant Society/school’s contention that the said medical certificates are not genuine and are disputed. iv. According to the Appellant Society/school sometime in May/June 1992, Respondent No.1allegedly obtained an experience certificate from the headmistress of the Appellant Society/school to establish that she was working in the school till 30th April 1992. It is Respondent No.1’s contention that termination was effective from 30th April 1992 and that she had not abandoned her services in the year 1991. However, the experience certificate obtained by Respondent No.1 is being disputed by the Appellant Society/school and it is their contention that Respondent No.1 had abandoned services on 14th December 1991. Thereafter on 6th July 1992 Respondent No.1 addressed her grievance to the Deputy Director and Education Officer against her termination. On such backdrop, on 17th July 1992 Respondent No.1 filed an appeal No. 53 of 1992 before the School Tribunal under Section 9(a) of the MEPS Act contending that she was appointed on a clear permanent vacancy and not on a temporary basis and hence the provisions of Section 5(2) of the MEPS Act were applicable in her case. v. After according a hearing to the Appellant Society/school and Respondent No. 1, the school tribunal held that Respondent No.1 was not appointed on a permanent basis but was appointed on a temporary basis. Also there was no order of appointment in favour of Respondent No.1 under the provisions of MEPS Act. The school tribunal by aforesaid order dated 18th December 1996 dismissed appeal No. 53/1992 filed by Respondent No.1. The said appeal was primarily dismissed on the ground of delay in filing the same and also on the ground that Respondent No.1 was appointed purely on a temporary basis. vi. Being aggrieved by the order dated 18th December 1996 passed by the school tribunal Respondent No.1 filed writ petition no. 3349 of 1998 before this court which came to be allowed by way of impugned order dated 27th September 2007 which is challenged in the present Letters Patent Appeal. vii. On 9th September 2008, a Division Bench of this court admitted the present Letters Patent Appeal preferred by the Appellant Society/school. Further, by order dated 24th September 2008, a Division Bench of this court stayed the relief of reinstatement granted to Respondent No.1 by way of the impugned order, subject to the condition that the Appellant Society/school would deposit 50% of the backwages in this court. viii. Being aggrieved by order dated 24th September 2008 passed by the Division Bench of this Court, the Appellant Society/school preferred a Special Leave Petition No. (S) 5197 of 2009 before the Apex Court. However, on 16th March 2009 the Appellant Society/school withdrew the aforesaid SLP before the Apex court with liberty to approach this court subject to deposit of 50% of the backwages of Respondent No.1. ix. It is in the backdrop of these facts that the issue which has fallen for consideration before this court is as to whether the learned Single Judge erred in passing the impugned order allowing the petition filed by Respondent No.1 and in holding that there was no abandonment of service by Respondent No.1 and hence she may be reinstated in the service of the Appellant Society/school.

3. We have heard Mr. Rohit Joshi for the Appellant Society/school, Ms. Ranjana Todankar for Respondent No.1 as well as Ms. Kavita Solunke, Addl.G.P. for the State. We have also perused the papers and the impugned order passed by the learned single judge.

4. Mr. Rohit Joshi, learned Counsel for the Appellant Society/school contends that the impugned order needs to be interfered and set aside as it proceeds on a footing which cannot be accepted in law. He submits that Respondent No.1 abandoned her services, and also that she had joined the school on a temporary basis and her appointment was not against a clear permanent vacancy as a permanent employee that too without an appointment order. He further submitted that a regular appointment is required to be done in accordance with Section 5 of the MEPS Act read with Rule 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981(hereinafter referred to as “MEPS Rules”). It is also his contention that as no appointment order was issued in favour of Respondent No.1 therefore, there was no material on record that her appointment was in accordance with the provisions of the MEPS Act and Rules. His submission that on such basic premise the impugned order needs to be interfered as it does not appreciate the correct facts and the provisions of law as applicable.

5. On the other hand, Ms. Todankar learned counsel for Respondent No.1 has vehemently contended that in fact Respondent No.1 was a permanent employee and appointed against a clear permanent vacancy which was the only requirement of Section 5 of the MEPS Act, under which all appointments which were made to fill the permanent vacancy are to be considered to be on probation for two years. She also submitted that in fact Respondent No.1 was in continuous service for two years and has to be deemed to be permanent by virtue of provision of Section 5(2) of the MEPS Act. She further submitted that because of the deeming provisions of Section 5(2) of the MEPS Act, the Appellant Society/school had incorrectly contended that Respondent No.1 had abandoned her services and therefore was not entitled to the benefits of reinstatement and back-wages. She further submitted that in the facts of the present case the provisions of Section 5(4) of the MEPS Act would be applicable. She therefore submits that the impugned order was passed recognizing the correct position in law and facts hence the appeal deserves to be dismissed.

6. After hearing the contentions as canvassed by both the parties, we have perused the record with their assistance. To decide the issues which fall for consideration in the present proceedings, it would be beneficial to note the provisions of Section 5 of the MEPS Act, inasmuch as the entire controversy hinges on the satisfaction of conditions as enumerated in the aforesaid Section. Section 5 of the MEPS Act is reproduced below:- “5. (1) The Management shall, as soon as possible, fill in, in the manner prescribed, every permanent vacancy in a private school by the appointment of a person duly qualified to fill such vacancy: [Provided that, unless such vacancy is to be filled in by promotion, the Management shall, before proceeding to fill such vacancy, ascertain from the Educational Inspector, Greater Bombay, [the Education Officer, Zilla Parishad or, as the case may be, the Director or the officer designated by the Director in respect of schools imparting technical, vocational, art or special education, whether there is any suitable person available on the list of surplus persons maintained by him, for absoration in other schools and in the event of such person being available, the Management shall appoint that person in such vacancy.] (2) Every person appointed to fill a permanent vacancy [except 4[Assistant Teacher (Probationary)] shall be on probation for a period of two years. Subject to the provisions of sub-sections (3) and (4), he shall, on completion of this probation period of two years, be deemed to have been confirmed: [Provided that, every person appointed as [Assistant Teacher (Probationary)] shall be on probation for a period of three years.] [(2A) Subject to the provisions of sub-sections (3) and (4), [Assistant Teacher (Probationary)] shall, on completion of the probation period of three years, be deemed to have been appointed and confirmed as a teacher.] (3) If in the opinion of the Management, the work or behaviour of any probationer, during the period of his probation, is not satisfactory, the Management may terminate his services at any time during the said period after giving him one month’s notice 9[or salary 10[or honorarium] of one month in lieu of notice]. (4) If the services of any probationer are terminated under sub-section (3) and he is reappointed by the Management in the same school or any other school belonging to it within a period of one year from the date on which his services were terminated, then the period of probation undergone by him previously shall be taken into consideration in calculating the required period of probation for the purposes of sub-section (2). [(4A) Nothing in sub-section (2), (3) or (4) shall apply to a person appointed to fill a permanent vacancy by promotion or by absorption as provided under the proviso to sub-section (1).] (5) The Management may fill in every temporary vacancy by appointing a person duly qualified to fill such vacancy. The order of appointment shall be drawn up in the form prescribed in that behalf, and shall state the period of appointment of such person.”

7. On a plain reading of Section 5(1) & (2) of the MEPS Act on which much reliance has been placed by both the Appellant Society/school and Respondent No.1, it is clear that the following conditions need to be fulfilled for the appointment as envisaged by the said Section.

(i) The management of a private school shall as soon as possible fill in the manner prescribed, every permanent vacancy in a private school by the appointment of a person duly qualified to fill such vacancy.

(ii) the person appointed must be appointed to fill a permanent vacancy and except in the case of assistant teacher (probationary), the probation shall be for a period of 2 years.

(iii) Once the person who has been appointed to fill a permanent vacancy has completed the probation period as envisaged in sub-section 5(2) his/her service will be deemed to have been confirmed. Further the provisions of sub-sections 3 and 4 of Section 5 of the MEPS Act have also to be taken into consideration before deeming an appointment to be permanent of a person who has been on probation as per Section 5(2) of the MEPS Act. It is hence clear that the crucial condition to fill a permanent vacancy as per the MEPS Act is the appointment of a person.

8. This appointment of a person has to be preceded by an appointment letter and a relevant advertisement which are basic/primary conditions which need to be fulfilled for recognizing and/or for the sanctity of any appointment being made as per the provisions of MEPS Act and Rules. Also, the provision of Section 5 mandate that the appointment must be made against a clear permanent vacancy and must not be an ad hoc appointment. In the facts of the present case none of the ingredients as envisaged under the provisions of Section 5 of the Act have been fulfilled, inasmuch as Respondent No.1 was never given an appointment letter and neither had she been appointed on a permanent basis. There was no material as rightly held by the Tribunal which would demonstrate a clear permanent vacancy. Further Respondent No.1 had abandoned her services in the year 1991 without assigning any reasons for the same. In fact even on repeated letters issued by the Appellant Society/school to Respondent No. 1, post 1991, to rejoin the services of the Appellant Society/school, Respondent No.1 did not resume her services/employment.

9. We must also note that in the facts of the present case, the Appellant Society/School is a fully aided school by the government and therefore the same is governed by State legislations, i.e., MEPS Act and the MEPS Rules. Burden of payment of salaries of such teachers is borne by the State Exchequer. Accordingly, such employment lies in the realm of public employment. Therefore, the recruitment/selection/employment of such teacher in private aided schools has to be in conformity with the procedure prescribed by law i.e. under the MEPS Act and the Rules framed thereunder.

10. It is nobody’s case that the Appellant would not be bound to follow the mandate of law to adopt the lawful procedure in making appointment to the post of an Assistant Teacher. We are therefore not inclined to accept the submission made on behalf of Respondent No.1 that the appointment of Respondent No.1 was made on a clear permanent vacancy, and that Respondent No.1’s appointment which is made in the absence of any material can at all be considered to be on any permanent vacancy on a probation for period of two years. Since Respondent No.1 did not get appointed on the strength of an appointment letter, which is sine qua non for any lawful appointment to be granted to a person, the entire case of Respondent No.1 falls on this very ground itself. Further, it is very clear from the facts of the case that Respondent No.1 had abandoned her services without affording any plausible explanation for the same. Hence it is a case of a temporary appointee having abandoned her services.

11. Further a detailed procedure has been set out in Rule 9 of the MEPS Rules in relation to the appointment to be made by a management which reads thus:- “Rule - 9. Appointment of staff. (1) The teaching staff of the school shall be adequate having regard to the number of classes in the school and the curriculum including alternative courses provided and the optional subjects taught therein. (2) Appointments of teaching staff (other than the Head and Assistant Head) and those of non-teaching staff in a school shall be made by the School Committee: Provided that, appointments in leave vacancies of a short duration not exceeding three months, may be made by the Head, if so authorised by the School Committee. (2-A) (sic) [(2-B) The advertisement shall be kept open for at least fifteen days before filling of the concerned post. The candidate may apply for vacant post in response to the said advertisement through online process or by making an application in writing giving details regarding name, address, date of birth, educational and professional qualifications, experience with the marks secured in the Aptitude Test. (2-C) After completion of the period mentioned in the advertisement, the Education Officer or Deputy Director, as the case may be, shall communicate the names of the candidates, who have passed the Aptitude Test, to the Management through online process in proportion 1:10 for one vacant post. The selection of the candidate shall be made by the school committee on the basis of interview. If the school committee does not select candidate having higher marks in the Aptitude Test, the Management shall record the reasons for the same: Provided that, the Management may also select the candidates who have passed the Aptitude Test directly from the online merit list maintained by the Education Director, without taking interview. (2-D) The Management shall publish the names of the selected candidates within five working days on Pavitra web portal and shall also communicate the names of the selected candidates to the concerned Education Officer or Deputy Director, as the case may be.] (3) Unless otherwise provided in these rules for every appointment to be made in a school, for a teaching or a non teaching post, the candidates eligible for appointment and desirous of applying for such post shall make an application in writing giving full details regarding name, address, date of birth, educational and professional qualifications, experience, etc., attaching true copies of the original certificates. It shall not be necessary for candidates other than those belonging to the various sections of backward communities for whom posts are reserved under sub-rule (7) to state their castes in their applications. (4) The age limit for appointment to any post in a school shall be as follows, namely: (a) for an appointment to be made to any post in a primary school, a candidate shall not be less than 18 years of age and more than 28 years of age, and in the case of candidate belonging to Backward Classes he shall not be more than 33 years of age: Provided that, upper age-limit may be relaxed in case of women, exservicemen and persons having previous experience with the previous permission of the Deputy Director. (b) for an appointment to be made to any post in any school other than primary school, a candidate shall not be below the age of 18 years. (5) A letter of appointment order in the Form in Schedule "D" shall be issued to a candidate appointed to the post. A receipt in token of having received the appointment order shall be obtained from the candidate appointed. (6) Every employee shall within three months of his appointment, undergo medical examination by a registered medical practitioner named, if any, by the Management or otherwise by any registered medical practitioner. The expenses of medical examination shall be borne by the Management. The appointment shall be conditional pending certificate that he is free from any communicable disease and that he is physically fit to be so appointed. (7)[The Management shall reserve 52 per cent, of the total number of posts of the teaching and non-teaching staff for the persons belonging to the Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward Category and Other Backward Classes as follows, namely. (a) Scheduled Castes 13 per cent: (b) Scheduled Tribes 7 per cent;

(c) De-notified Tribes (A) 3 per cent;