Oral Judgment:
1. Rule, made returnable forthwith. Heard finally by consent of the learned counsels appearing for the parties.
2. This petition takes exception to the judgment and order dated 6.2.2012 passed by the School Tribunal, Amravati , in Appeal No.75 of 2001 filed by the respondent No.2 challenging his termination from service with effect from 31.3.2001. The School Tribunal has allowed the appeal, set aside the otherwise termination by accepting resignation of the respondent No.2 on 10.12.2000, and directed reinstatement with continuity in service and 25% of back wages.
3. The undisputed factual position is that the respondent No.2 was initially appointed as an Assistant Teacher for the period from 1.7.1997 to 30.4.1998. Thereafter, by issuing separate orders of appointment, the respondent No.2 was appointed for the period from 21.6.1998 to 30.4.1999, from 1.7.1999 to 30.4.2000, and from 1.7.2000 to 30.4.2001. While making the appointment of the respondent No.2 on all these occasions, the advertisement was issued in the newspaper inviting applications, and after holding the interview, the respondent No.2 was selected for the post. The case of the Management was that on 21.11.2000, the respondent No.2 submitted resignation in his own handwriting, which was accepted by the Management on 10.12.2000, and from that date, he was out of employment. An appeal was filed by the respondent No.2 before the School Tribunal sometime in the month of October, 2001 along with an application for delay and the delay caused was condoned.
4. 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 (œthe 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.
5. 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.
6. Section 5 of the MEPS Act being relevant, is reproduced below :
œ5. Certain obligations of Management of private Schools.
(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 absorption 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 Shikshan Sevak shall be on probation for a period of two years. Subject to the provisions of subsections (4) and (5), he shall on completion of this probation period of two years, be deemed to have been confirmed.
Provided that, every person appointed as shikshan sevak shall be on probation for a period of three years.
(2A) Subject to the provisions of subsections (3) and (4), shikshan sevak 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 or salary or honorarium of one month in lieu of notice.
(4) If the services of any probationer are terminated under subsection (3) and he is reap0pointed 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 subsection (2).
(4-A) Nothing in subsection (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 subsection (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.?
Under subsection (1) of Section 5 of the MEPS Act above, the Management is under obligation to fill in every permanent vacancy, as soon as possible, in the manner prescribed, by appointment of a person duly qualified to fill in such vacancy.
7. The School Tribunal has held that the post held by the respondent No.2 is being filled every year from 19.6.1997 on temporary basis in the manner prescribed for making appointment in a permanent vacancy from 19.6.1997, and even after termination of the services of the respondent No.2, on 10.12.2000, the appointment of Ku. Manisha Pandav was made and she is working on the post. It was not the stand of the Management that the appointment was in a temporary vacancy, as contemplated by subsection (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.
8. 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. The Division Bench of this Court has taken a view in its judgment dated 10.10.2005 delivered in Writ Petition No.3894 of 2001 (Anil s/o Govindrao Bhagwat and another v. The State of Maharashtra and others), which was filed by the respondent No.2, holding that Diploma of Teaching awarded by the Sagar University has to be held to be equivalent to Diploma of Education in the State of Maharashtra. 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.
9. Subsection (2) of Section 5 of the MEPS Act states that every person appointed to fill in a permanent vacancy, except ShikshanSevak, shall be on probation for a period of two years. In view of the decision of the Apex Court in the case of BharatiyaGramin Punarrachana Sanstha v. Vijay Kumar and others, reported in 2003(1) Mh.L.J. 563, the provision of deemed confirmation in service applies to a case where the appointment has been made on probation consequent upon appointment in a permanent vacancy. It was held that the respondent-employee in the said decision was not put on probation and his services were terminated before completion of two years and hence the case did not fall within subsection (4) of Section 5 of the MEPS Act. It was neither the question involved, raised or decided as regards treating the appointment as on probation, though the order stipulates it to be on temporary basis for a fixed period. Hence, the said decision cannot be cited as an authority for the question involved in this case.
10. In a situation, where there is compliance of subsection (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, 1.7.1999 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 subsection (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.
11. Once the initial appointment of the respondent No.2 on 19.6.1997 is treated as on probation, then subsection (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 subsection (2) of Section 5 and there is no question of operating estoppel against the respondent No.2, as the statutory provision of subsection (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 subsection (2) of Section 5.
12. 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.
13. So far as the question of the back wages is concerned, the School Tribunal has granted only 25% of the back wages and hence this order does not call for any interference. As per the order passed by this Court on 27.7.2012, the Management claims to have deposited 25% of the back wages in this Court. Shri Patil, the learned counsel for the respondent No.2, submits that the amount has been calculated as if the respondent No.2 was an untrained Teacher, and according to him, the exact amount comes to Rs.4,52,918/-. The respondent No.2 is at liberty to recover such balance amount, if it becomes due and payable, from the Management, in accordance with law. The respondent No.2 is, however, permitted to withdraw the amount so deposited by the Management in this Court, without prejudice to his rights.
14. For the reasons stated above, I do not find any merit in this petition. The petition is, therefore, dismissed.
15. At this stage, Shri Moon, the learned counsel for the Management, prays that this judgment and order be stayed for a period of four weeks so as to enable the petitionerManagement to have recourse to the further remedy available in law.
Shri Patil, the learned counsel for the respondent No.2, has opposed the prayer.
In view of the fact that the Management has deposited the amount of Rs.2,25,760/- in this Court, the interim order passed by this Court on 27.7.2012 shall continue to operate for a further period of four weeks from today; after expiry of which, it shall stand automatically vacated without reference to the Court.
16. Rule stands discharged. No order as to costs.