Judgment:
C.V. Bhadang, J.
1. Heard Shri A.M. Gordey, learned Senior Counsel for the petitioner, Shri M.M. Ekre, learned Assistant Government Pleader for respondent no.1-State, Shri H.A. Deshpande, learned counsel for respondent no.2 and Shri M.P. Lala, learned counsel for respondent no.3.
2. The petitioner, who is holding the qualification as M.A., M.Phil and B.Ed., was initially appointed as an Assistant Teacher in a school run by respondent no.2-Society with effect from 23.6.1992 and he was posted in Narendra Vidyalaya, Telgaon. According to the petitioner, his appointment was in a clear vacancy in the academic session 1992-93. By continuation order dated 3.5.1993, the appointment was continued with effect from 4.5.1993 until further order. This was subject to approval of Education Officer, Zilla Parishad, Nagpur.
3. It appears that the petitioner was not allowed to sign the muster roll and was prohibited from performing his duties, with effect from 16.7.1992, which prompted the petitioner to approach the School Tribunal in Appeal No.STN/30 of 1993. That appeal came to be allowed on 14.8.1997 and respondent no.2-Management was directed to reinstate the petitioner with certain other ancillary reliefs. Accordingly, the petitioner joined the services with effect from 21.8.1997.
4. It further appears that the services of the petitioner and two others were discontinued on account of they being rendered surplus under Rule 26 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (hereinafter referred as 'Rules'). The matter was entertained and heard by the Education Officer and by communication dated 6.8.1998 (Annexure-VII), it was found that the present petitioner and one Shri R.H. Phalke could be absorbed/accommodated. Accordingly, the petitioner was absorbed and started working in respondent no.3-School run by another Trust. However, by a subsequent order dated 25.10.1999, the Education Officer, Zilla Parishad, Nagpur i.e. respondent no.1 had found that the appointment of the present petitioner and two others namely Shri R.H. Phalke, Assistant Teacher and Arun Deorao Deshmukh, Peon were not approved and as such they could not have been absorbed. As such the earlier orders issued on 5.8.1998 were recalled/cancelled. Feeling aggrieved, the petitioner has filed this petition.
5. The respondent no.1 has contended that there was no approval to the appointment of the petitioner and in that view of the matter, respondent no.1 was justified in recalling the earlier order about the absorption. It is also contended that, as has been found by the Education Officer, the earlier orders were passed on the basis of certain misrepresentation made by the Head Master of the School and the Secretary of the Trust. It is, therefore, contended that the cancellation/recall of the earlier order is legal and proper.
6. It is submitted by Shri Gordey, learned Senior Counsel for the petitioner that the petitioner was appointed against a clear vacancy and had, in fact, worked for a period of two years and as such, looking to the probation period prescribed, must be deemed to have been confirmed. It is submitted that the petitioner has been referred to and acknowledged to be a permanent employee by the concerned authorities including the respondent no.1. It is submitted that the petitioner was otherwise qualified for being appointed as an Assistant Teacher and as such, in view of the fact that the appointment was against a clear vacancy and the petitioner having worked for two years, had attained the status, as a permanent employee. It is submitted that, at no point of time, including before the School Tribunal, a case was set up about the appellant not being a permanent employee. The learned senior counsel has also referred to the common seniority list (Annexure-XII) wherein the name of the petitioner appears at Sr.No.9 in order to show that, in fact, the petitioner was being treated as a permanent employee. It is, therefore, submitted that respondent no.1 was not justified in recalling the earlier order on the ground of absence of approval. The learned senior counsel submitted that there is no requirement under Rule 26 of the Rules, about there being an approval by the Education Officer. Reliance is placed on the decision of this court in the case of Meera Babulalji Modi .vs. Education Officer (Secondary), Zilla Parishad, Nagpur and others, reported in 1998 (1) Mh.L.J. 175 in order to submit that approval is not a sine qua non in such a case. Reliance is also placed in this regard on a Full Bench decision of this Court in St. Ulai High School and another .vs. Devendraprasad Jagannath Singh and another, 2007 (1) Mh.L.J. 597. The learned senior counsel has referred to certain subsequent developments after filing of the petition. It is submitted that other two similarly situated employees in respect of whom the orders were recalled, had approached this court in a separate petition, in which the matter was remanded and the Education Officer was directed to hear all the concerned (which included the present petitioner) and to take a decision. It is submitted that accordingly the respondent no.1 had heard the parties including the petitioner and has passed an order, which is at Annexure-XIV dated 30.9.2001. It is contended that insofar as the present petitioner is concerned, after noticing that the petitioner is working continuously, the Education Officer has kept the matter pending subject to the decision of the present petition. The learned senior counsel would submit that in absence of any requirement about approval under Rule 26 of the Rules, the impugned order dated 25.10.1999 cannot be sustained.
7. The learned counsels appearing for respondent nos.2 and 3 have supported the petitioner. It is submitted that rightly the Education Officer had earlier passed order regarding absorption of the petitioner when he was rendered surplus in the school run by respondent no.2-Trust. It is submitted that as per the order passed by the Education Officer, the petitioner joined respondent no.3 School and was, in fact, working when impugned order recalling the earlier order was passed.
8. The learned Assistant Government Pleader has supported the impugned order passed by the Education Officer. It is submitted that the requirement of there being an approval has to be read into Rule 26 of the Rules. It is also contended that in the hearing conducted by the Education Officer, in pursuance of the direction of this court in the order dated 30.9.2001, the Education Officer had found that the earlier orders were passed based on certain misrepresentation/incorrect information supplied by the Head Master of the School and the Secretary of the concerned Institution. The learned AGP has placed reliance on the judgment of this Court in the case of Meera Babulalji Modi .vs. Education Officer (Secondary), Zilla Parishad, Nagpur and others, reported in 1998 (1) Mh.L.J. 175. He, therefore, submitted that the petition is devoid of any substance.
9] We have considered the rival circumstances and the submissions made. The material facts are not in dispute, apart from being matters of record. It is not in dispute that the petitioner was appointed as an Assistant Teacher and was working as such in Narendra Vidyalaya, Telgaon run by respondent no.2-Trust. The educational qualification of the petitioner are also not in dispute and on the basis of the same, the petitioner would be qualified to work as an Assistant Teacher. A perusal of order dated 23.6.1992 (Annexure-II) shows that the petitioner was appointed as Assistant Teacher with effect from 23.6.1992 for a period of one session and by subsequent order dated 3.5.1993 (Annexure-III) has been continued with effect from 4.5.1993 until further order. It is further a matter of record that the petitioner had approached the School Tribunal in Appeal No.STN/30 of 1993 on the allegation that he was prohibited from performing his duties. By a judgment and order dated 14.8.1997 the petitioner came to be reinstated and was accordingly allowed to join on 21.8.1997. It would further appear that the petitioner was rendered surplus and the letter dated 6.8.1998 from the Education Officer, Zilla Parishad, Nagpur would show that the proposal of the Management for absorption of the petitioner and one Shri R.H. Phalke was approved and accordingly the petitioner joined respondent no.3 School under a different Trust with effect from 10.11.1998. A perusal of letter dated 17.10.1998 (Annexure-VIII) from the respondent no.1 would show that the petitioner was treated as a permanent employee and respondent no.3, in fact, was obligated not to appoint the petitioner on probation. A perusal of the seniority list (Annexure-XII) of Narendra Vidyalaya, Telgaon would also show that the name of the petitioner finds place at Sr.No.9 in the common seniority list of the teaching staff as on 23.7.1998. It is further pertinent to note that the petitioner has been continuously working since then, albeit on account of interim order passed by this court. It would further appear that the Education Officer had granted hearing to the petitioner and two others (on account of the order passed in other petition) and order dated 30.9.2001 is produced on record. A perusal of the said order shows that the earlier orders were recalled on the ground that there was no approval to the appointment and secondly there was some misrepresentation/incorrect information being supplied by the Head Master of the School and the Secretary of the Trust.
10. Shri Gordey, learned Senior Counsel has submitted that, apart from other ground, impugned order has also been assailed on account of there being breach of principles of natural justice. It was, however, submitted that subsequently the Education Officer had granted hearing and passed order dated 30.9.2001. Although it was submitted that this would be in the nature of a post decisional hearing and would not strictly satisfy the requirement of compliance with the principles of natural justice, the learned Senior Counsel fairly submitted that the ground about the breach of principles of natural justice may not survive.
11. Thus, the only question is, whether the Education Officer was justified in recalling the earlier order for the twin reasons of there being no approval and on account of certain misrepresentation/supply of incorrect information, as alleged. Insofar as the second aspect is concerned, except a bare in the order dated 30.9.2001, there is nothing on record to show that there was such a misrepresentation or the specific nature thereof. In this regard, it may be mentioned at the outset that this ground about there being certain misrepresentation is not to be found in the impugned letter dated 25.10.1999 (Annexure-XI). That letter apparently refers to only one ground for recalling of earlier order namely absence of approval. This aspect about there being a misrepresentation is for the first time mentioned in the order dated 30.9.2001. It is trite that a particular order/decision cannot justifiably be supported and supplemented on the basis of reasons subsequently articulated. Reference in this regard may be made to illustrated decision of the Honble Apex Court in the case of Mohinder Singh Gill and another .vs. The Chief Election Commissioner, New Delhi and others, AIR 1978 SC 851. The following observations in para 8 are to the point:
âThe second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (AIR 1952 SC 16) (at p.18).
âPublic orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itselfâ.
Orders are not like old wine becoming better as they grow older.â
Even otherwise, except a bare mention about there being a misrepresentation by the Head Master and the Secretary, no particulars of the alleged misrepresentation are given in the order dated 30.9.2001. The only thing which finds place in the order is that the petitioner and others were not entitled for absorption. In the absence of any such reason being found in the letter dated 25.10.1999 and in the absence of the particulars about the alleged misrepresentation, we are not inclined to accept the said ground in support the order recalling the earlier directions about the absorption. The decision in the case of Meera Babulalji Modi .vs. Education Officer (Secondary), Zilla Parishad, Nagpur and others (supra), in our considered view, would not come to aid of respondent no.1, as the facts obtained therein are clearly distinguishable. In the case of Meera Babulalji Modi (supra), the petitioners were the erstwhile employees of the society at Chandrapur and were teaching in the school run by that society. The petitioners were declared surplus in their school and were absorbed in other schools at Nagpur. These absorption orders were passed under Rule 26 of the aforesaid Rules. All the petitioners were subsequently informed by a communication from the society that they were being repatriated to their parent society at Chandrapur. That was the communication which was the subject matter of challenge before this Court in which the petitioners contended that once a teacher, who is rendered excess and is adjusted and absorbed in some other school, gets option either to get repatriated to his original school or to continue in school in which he has been absorbed in view of rule 26(5) of 1981 Rules.
In that case, on the basis of reply filed by the Education Officer, it was found that, in fact, the petitioners were not rendered surplus, as they could have been accommodated in other schools run by their parent Trust at Chandrapur. It was thus found that on the basis of certain misrepresentation that under the guise of absorption, the petitioners started working at Nagpur and then challenged their repatriation to the parent Trust. In the wake of these facts and the Education Officer having admitted in a couched manner that his earlier action for absorption is incorrect (having been brought about by respondent no.2 therein, on the basis of incorrect factual reporting), this court found that the challenge to the impugned action cannot be sustained. As noticed earlier, in the present case, there are no particulars of the alleged misrepresentation forthcoming on record and that is also not a ground in the communication dated 25.10.1999. In that view of the matter, the submissions on behalf of the respondent no.1 in this regard cannot be accepted.
12. This takes us to the ground about the absence of approval. In the Full Bench decision in the case of St. Ulai High School and another .vs. Devendraprasad Jagannath Singh and another (supra), one of the issues before the Court was, whether it is mandatory for every private recognized school to obtain approval of the Education Department of the State, to the appointment of employees, including a teacher employed at such school. This question has been answered in the negative. In the conclusions at para no.13 (iii), it has been held thus:
(iii) Neither the MEPS Act, 1977, nor the Rules framed thereunder mandate the grant of approval by the Education Officer as a condition precedent to a valid order of appointment. The requirement of approval which relates to the disbursal of grant in aid is a matter between the management and the State and want of approval will not invalidate an order of appointment.â
We further find that Rule 26 in terms does not expressly lay down the requirement of appointment being approved as a condition precedent to its applicability. Apart from this, on facts, in the present case, we find that the appellant was qualified for being appointed as an Assistant Teacher and had, in fact, worked for more than two years continuously against a clear vacancy. The contesting respondents did not agitate before the School Tribunal that the petitioner was not a permanent employee and, in fact, the letter by the Education Officer dated 17.10.1998 (Annexure-VIII) shows that the petitioner was treated as a permanent employee and required the respondent no.3 not to appoint the petitioner on probation. In such situation and in the peculiar facts and circumstances of the case, we find that impugned order/communication recalling earlier order of absorption cannot be sustained.
13. In that view of the matter, the petition is allowed. Rule is made absolute in terms of prayer clause (A). There shall be no order as to costs.