Judgment:
C.L. Pangarkar, J.
1. These two Writ Petitions by management against the order of School Tribunal can be disposed of by common judgment since the facts in both the petitions are identical.
2. The facts are as follows:
Petitioner is a Society registered under the Societies Registration Act and also a Public Trust. Petitioner Society runs a Primary School, Secondary School and Junior College at Nagpur. All the employees of the School are governed by the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act 1977. The Deputy Director of Education Nagpur Region had granted permission to the petitioner to open first year Junior College during the Session 200304 on permanent no grant basis. Petitioner Society was therefore in need of the teachers for conducting those classes. Respondent No. 1 possesses a degree in Science and a degree in Education i.e. B. Sc. B. Ed. He was appointed initially by order dated 06.08.2004. Petitioner contends that the appointment of the respondent No. 1 was on clock hour basis and he was being paid honorarium. There was no question of his appointment being made under Section 5 of the M. E. P. S. Act. He was also, therefore, not liable to be made permanent in terms of Section 5(2) of the said Act. A proposal for approval of the appointment of the respondent No. 1 was sent to the Director and information in Form No. 8 was also sent to the Director. While sending the said information it was specifically mentioned in the said form that the appointment of the respondent No. 1 was only on clock hour basis. Respondent No. 1 was being paid initially Rs. 1000/P. M. as honorarium which subsequently came to be increased to Rs. 1500/P. M. Petitioner terminated the services of the respondent by order dated 27.09.2007. Feeling aggrieved by that respondent No. 1 preferred an appeal before the School Tribunal. It was the contention of the respondent No. 1 that he was appointed for a period of three years and after completion of two years he is deemed to have been confirmed in the said post and the management cannot go beyond the order of appointment issued by it. He contended that he has worked for a period of three years continuously and is therefore deemed to have been confirmed.
3. Learned Judge of the School Tribunal accepted this contention and directed reinstatement of the respondent No. 1. Feeling aggrieved thereby the management has preferred these Writ Petitions.
4. I have heard the learned Counsel for the petitioner as well as the respondents. The material question that needs to be answered to my mind is whether the appointment order alone could be looked into to find out what was exactly the service contract or the attendant circumstances also can be looked into. Before dwelling on this aspect a few facts which are not in dispute may be narrated.
5. The petitioner is a recognised school. The petitioner was granted permission to run Junior College (11th Standard) on permanent no grant basis for the first time in the year 200304. The said permission continued upto 200607. Respondentsteachers were appointed as teachers vide appointment letter dated 06.08.2004. Their services were terminated by letter dated 27.09.2007. Appointment letter discloses that the appointment was for a period of three years. Appointments were made without issuing any advertisement.
6. Shri Khan learned Counsel for the respondentsteachers contends that the parties are governed by the service contract in the form of appointment letter and the petitioner cannot resile from that. He submits that learned Judge of the Tribunal has rightly held that this appointment letter is the only thing that can be looked into since it is a service contract and any other communication between the management and others has no relevance. The learned Judge observes that the communication between management and the Deputy Director has no relevance and the letter of appointment is a service contract which is only relevant. I however, do not find any substance in the argument of the learned Counsel and the observations of the learned Judge. Letter of appointment alone would not be a determinative factor to determine the nature of the appointment always. It seems to me that the letter of appointment is issued in the format prescribed under Rule 9(5) of the Maharashtra Employees Private Schools (Conditions of Service) Regulation Act. If this form is read, there are options and blanks, in the same. If the present appointment order is seen it is apparent that neither the blanks are filled nor unwanted or irrelevant portion is scored out. For instance para 2 of the said format reads as follows:
(2) * Your appointment is purely temporary for a period of three years from 06/08/2004 to the end of the sessions 2007in the leave/deputation vacancy. After expiry of the above period, your services shall stand terminated without any notice.
OR * Your appointment is on Probation for a period of two years.
It is apparent that it is not clear if the appointment is temporary or on probation or on leave vacancy or on deputation. The name of the doctor to whom he is to report for examination is also not filled in. Even the scale of pay is not mentioned in the said order. It is not even mentioned that respondents would be paid Rs. 1000/P.M. It is therefore apparent that the order was not issued very cautiously but it was issued in the format since the appointment order is generally required to be issued in the format. If the petitioners intended to appoint the respondents on probation blank or unnecessary portion should have been scored out. It is due to the fact that nothing is scored out and it is not clear which of the clauses are to apply and which are not to apply, it would be necessary to look into the attendant circumstances. Intention of the parties cannot be gathered without that. If the appointment order is alone read it would be absolutely impossible to determine the nature of the appointment. However only one thing which is clear is that the appointment is for a period commencing from 06.08.2004 upto the end of session i. e. 2007.
7. Shri Lala learned Counsel for the petitioner submits that all evidence showing that appointment was on clock hour basis was placed on record. Yet the Tribunal did not take into consideration those documents. Petitioner's reply before the School Tribunal makes it clear that petitioner did raise a plea that appointment was on clock hour basis. Learned Counsel invites my attention to the documents concerned. First such document is the Resolution passed by the School Committee Annexure 'H'. It says that three persons including the two respondents be appointed as contributory lecturers on the clock hour basis. Next document is a letter by Management to the Deputy Director written on 27.12.2006 requesting for approval of the appointment of the three persons on clock hour basis Annexure 'I'. Third document is the personal information required to be sent to the Director of newly appointed staff Annexure 'J'. In both these documents also it is made clear that the appointment is on the basis of clock hour basis. The number of periods, the teacher is supposed to engage, are also given and Annexure 'K' is the acknowledgment of payment made to respondents from August 2004 to August 2006. These acknowledgments (i. e. Acquittance) show that upto April 2005 the respondents were paid Rs. 1000/and from July 2005 they were paid Rs. 1500/. Thus it is clear that respondents were paid a fixed salary of Rs. 1000/and later Rs. 1500/. They were not paid salary in regular scale of pay until termination. They were also not paid any amount what so ever during the vacation that is months of May and June . This also indicates that they were paid an honorarium when they actually worked. The salary/honorarium was accepted by the respondents till their termination without any grievance. If all these documents are looked into, it is apparent that the appointment of the respondent was neither temporary nor on probation. It was only on contributory basis on the payment of honorarium for specified number of periods. These appointments were not even approved by the Deputy Director as can be seen from Annexure 'L'.
8. Learned Counsel for the respondents submits that respondents were appointed in the vacancy and that too for a period of three years and they actually worked for more than two years and therefore under Section 5 they should be deemed to have been confirmed. Section 5 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act reads as follows:
The Management 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:
[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 shall be on probation for a period of two years. Subject to the provisions of Sub-sections (3) and (4), he shall on completion or this probation period of two years be deemed to have been confirmed.
(a) in Sub-section (2) after the words 'permanent vacancy' the words 'except shikshak sevak' shall be inserted;
(b) to Sub-section (2), the following proviso shall be added namely:
Provided that, every person appointed as shikshak sevak shall be on probation for a period of three years. (c) after Sub-section (2) the following sub section shall be inserted, namely;12
(2A) Subject to the provisions of sub Sections (30 and (4) shikshak sevak shall on completion of the probation period of three years, be deemed to have been been appointed and confirmed as a teacher.;(d) in Sub-section (3), after the words 'or salary' the words or 'honorarium' shall be inserted.
(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 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.
The question is whether Section 5 would at all be applicable in this case. First thing that needs to be noted is that no advertisement is issued inviting any applications for appointment. It was not got approved from the Deputy Director. Appointments were made even without inviting applications from eligible persons. It is therefore clear that appointments were made without following any procedure. The present appointments therefore could be said to be back door entry. That is why the Deputy Director did not approve the appointments. Section 5 would not apply in the instant case because of the fact that the appointment was neither temporary on regular basis nor was it on probation. It could not even be said to be with a view to fill in the permanent vacancy at all. The appointment as said earlier is not even temporary or regular on regular pay scale. In the circumstances I do not find that the case falls under Section 5. Respondents appointment was for a fixed period and in any case notice of termination is also given which is not stigmatic. I find that learned Judge of the Tribunal fell in error in holding that the respondents were deemed to be confirmed and their termination was improper. Shri Lala learned Counsel for the petitioner invites my attention to order dated 18.02.2009 passed by this Court calling upon the petitioner to submit information about the work load available at the time of appointment. The petitioner has also filed affidavit dated 13.04.2009 with Annexures therein. Annexure P2 with such affidavit shows that the work load available to Sunil Wasudeo Bhoyar i. e. respondent was 4 hours 5 minutes and 5 hours 15 minutes while for Tekade 6 hours 15 minutes and 5 hours 45 minutes. This certainly is not a full work load. Government Resolution of the Education Department dated 01.12.2005 Annexure R13 shows that the ideal work load should be 17 to 18 hours. Only if the work load for 18 hours is available approval to full time teacher is accorded. It is thus obvious that the Education Department could not have issued an approval as full time teacher since work load was much less. It is not even 3/4th. Shri Khan learned Counsel for the respondentsteachers contends before me that jurisdiction of this Court is very limited and this Court cannot disturb the finding of fact by fresh material not placed before the Court below. He relied on the decision reported in 1998(3) ALL MR 173 Mrs. Rena Drego v. Lalchand Soni etc. and : [1954]1SCR565 Waryam Singh and Anr. v. Amarnath and Anr. Material upon which I have relied, except the material with regard to work load was very much before the Court below. Shri Lala learned Counsel for the petitioner makes a statement to that effect. I have, therefore, taken into consideration that material which was before the Court below. As far as work load material is concerned this Court by an interlocutory order had directed to place the same before the Court for determination of the question. That was so directed because the petitioner had contended before the Court that respondents were part time teachers while the respondents had contended that they were full time teachers. Both the parties were directed to produce material. In view of this direction of this Court itself, that material had to be taken into account. The evidence placed on record clearly goes to show that the appointment of the respondents was purely on clock hour basis and they were entitled to honorarium alone, they were not liable to be confirmed under Section 5 since their appointment was not under Section 5 of the M. E. P. S. Act. In view of this Writ Petitions must succeed. Writ Petitions are allowed. Order passed by the School Tribunal is set aside. Appeals preferred by the respondents before School Tribunal stand dismissed. No order as to costs.