Judgment:
C.L. Pangarkar, J.
1. Rule. Rule is made returnable forthwith. Heard finally with consent of the parties at the stage of admission.
2. This writ petition is filed against the order of the School Tribunal by the petitioner Management whereby the management is directed to reinstate respondent No. 2.
3. The facts giving rise to the writ petition are as follows The petitioner runs a school known as Mugal National Urdu Girls School. Respondent No. 2 is H.S.C. D.Ed. and is eligible for being appointed as an assistant teacher to teach the pupils from 5 to 7th standard. Respondent No. 2 came to be appointed as an assistant teacher in the said school. He joined his duties on 30/3/1998. The petitioner was appointed in a clear vacancy for a period of two years on probation. The Education Officer had also given an approval to his appointment. Until the year 1998, there was no dispute with regard to the appointment. One Mohd.Kalim was also serving as an assistant teacher in the petitioner No. 2 school. He possessed qualification of B.A.B.Ed. The Management i.e. the petitioner had terminated the service of said Mohd.Kalim for antiNational activities. The said Mohd.Kalim challenged his termination before the School Tribunal. The Tribunal had allowed the appeal and had directed his reinstatement. The Management had preferred a writ petition against the said order being writ petition No. 330 of 1996. The High Court had even granted an interim stay to the order passed by the School Tribunal. In order to avoid loss being caused to the students, the management appointed respondent No. 4 Rashida Begum as a teacher in 1993. The said appointment was subject to the decision of the judicial authority and the writ petition filed against reinstatement of Mohd.Kalim. As a result, the Education Officer had granted an approval for a period of one year only to the appointment of respondent No. 4 Rashidabegum. Later, the Management had withdrawn the writ petition No. 330 of 1996 which was preferred against the order of reinstatement of Mohd.Kalim. Thereupon, the petitioner management reinstated said Mohd.Kalim to his former post w.e.f. 27/4/1998. The management had appointed respondent No. 4 and she worked from 2/8/1996 for one year. She filed writ petition bearing No. 2262 of 1999 before the High Court. She claimed continuity in the service and the back wages. Respondent No. 2 contended in his appeal before the school Tribunal further that on 19/3/2001 the petitioner communicated to respondent No. 2 that approval to his appointment has been revoked by the Education Officer and his services are terminated w.e.f. 16/3/2001. Respondent No. 2, therefore, moved the High Court by filing an application in writ petition No. 2226 of 1999. The High Court while disposing of the said civil application observed that it had not directed the Education Officer to cancel the approval and directed to reconsider the case of respondent No. 4 and grant opportunity to respondent No. 2 also. The approval in favour of respondent No. 2 was restored on 17/9/2001. Respondent No. 4 Rashida Begum had moved an application for contempt of court for not paying a salary to her. The management was not in a position to pay the salary and avoid the contempt. Therefore, in order to avoid being punished, it is alleged that the management reinstated respondent No. 4 and terminated the services of respondent No. 2 from 26/9/2005. He was informed that the approval to his appointment was withdrawn by Education Officer. Respondent No. 2 contended in his appeal that his services were wrongly terminated and he should be reinstated in service because he was appointed in a permanent and clear vacancy and after following lawful recruitment process. Further, he contended that his appointment was not made against the post of Mohd.Kalim but it was respondent No. 4 who was appointed against the post of Mohd.Kalim and her services came to an end upon reinstatement of Mohd.Kalim.
4. The management i.e. the petitioner had resisted the appeal and admitted that the services of Mohd.Kalim were terminated w.e.f. 8/2/1993. They also admitted that Mohd.Kalim was a trained graduate and he was appointed against that vacancy. It is further admitted by the present petitioners that respondent No. 4 Rashidabegum was appointed as a stopgap arrangement although she was not qualified to be appointed against the post of trained graduate. It is further admitted that she was appointed in the scale of 1200 - 2040. Approval to her appointment was rejected in the year 1993. The petitioner submits that respondent No. 4 was appointed in the year 199697 and her services were terminated after the academic year was over. Respondent No. 2 was appointed on probation and his appointment was also approved by the Education Officer. The petitioner contends that respondent No. 2 was not appointed against any permanent vacancy. The petitioner in paragraph No. 3 of the written statement has clearly admitted that the appointment of respondent No. 4 was against the vacancy of Sk.Kalim. The next contention of the petitioner is that two persons are now working on the same post i.e. respondent Nos. 2 and 4 and therefore, the services of respondent No. 2 is required to be terminated. Strangely, the petitioner says that the management had informed the Headmaster to remove the name of respondent No. 4 from the muster roll but the headmaster allowed her to work.
5. Respondent No. 4 Rashidabegum has also filed her separate written statement in the said appeal before the School Tribunal. She admits that Mohd.Kalim was terminated and the management - petitioner had filed a writ petition in the High Court. She contends that appointment of respondent No. 2 was illegal in as much as there was no advertisement, no interview, no adherence to the legal procedure for appointment. She contends that she was appointed initially as an assistant teacher in the Middle School against the vacancy created due to termination of services of Mohd.Kalim. She admits that Mohd.Kalim was B.A.B.Ed. and post was in the Middle School. According to her, since the post was in the Middle School only, person possessing D.Ed. is entitled to be appointed and therefore, Mohd.Kalim was not entitled to be appointed to that post. She submits that 199596 vacancy of assistant teacher arose in the Middle School. When the said vacancy arose, she was also in service and therefore, the management had in fact adjusted respondent No. 4 as against that vacancy. She, therefore, contends that her appointment is very much legal and the services of respondent No. 2 were properly terminated.
6. The school Tribunal held that appointment of respondent No. 2 was made as per Section 5 of M.E.P.S. Act and his services were wrongly terminated. He directed reinstatement.
7. I have heard the learned Counsel for the petitioners as well as the respondents.
8. The controversy and all complications seem to have arisen after the services of Mohd.Kalim - a teacher were terminated and he was reinstated. The pleadings of the petitioner go to show that Mohd.Kalim was appointed as a trained graduate teacher in the quota of trained graduate teacher. Upon his appointment as a teacher, post of trained graduate teacher fell vacant on 6/2/1993. Respondent No. 4 was appointed as stopgap arrangement as she was matriculate and held qualification SSC D.Ed. The Education Officer had not granted approval to her appointment. Respondent No. 4 has filed her separate written statement in the School Tribunal. In the Additional submission she makes following averements.
It is submitted that this respondent was for the first time appointed as Assistant Teacher in the middle school w.ef.. 11/2/1993 against the vacancy created then because of termination of services of Mohd.Kalim. It is submitted here that Mohd.Kalim was B.A.B.Ed., D.Ed. The post was in the middle school department. In fact, as per law only D.Ed. Candidates are entitled to be appointed in the middle school department. Trained graduate teacher i.e. B.A. D.Ed. Only can draw graduate pay scale to the extent of 25% in the middle school department. But appointment of graduate teacher i.e. such candidate is not hard and fast. So, in view of the above position, Mohd.Kalim has had no right to the post.
It is thus clear and admitted position that upon termination of services of Mohd.Kalim, respondent No. 4 was appointed in his place. This Mohd.Kalim had filed an appeal in the School Tribunal and the said appeal was allowed. The Management had preferred writ petition No. 330 of 1996 and the same was withdrawn by the management. In pursuance to this withdrawal, stay was vacated and Mohd.Kalim was reinstated on 27/4/1998.
9. If Rashida Begum - respondent No. 4 was appointed in place of Mohd.Kalim, naturally she could not be appointed permanently on the said post as she was not qualified to hold that post being S.S.C. D.Ed. only. It appears that even in 1996 97 she was appointed for a period of one year only and her appointment was against the post of Mohd.Kalim which had fallen vacant due to the stay granted by the High Court. It is subject to decision of the writ petition she was appointed for one year only. Another thing that needs to be taken into account is that in the appeal filed by respondent No. 2 Mohd.Asif, respondent No. 4 Rashida Begum was also party. Although the said appeal preferred by Mohd.Asif is allowed and he is directed to be reinstated, respondent No. 4 Rashida Begum does not challenge that order by preferring a writ petition. She, therefore, in fact accepts that order. She accepts that order perhaps because of the fact that her reinstatement has no nexus with the termination or reinstatement of Mohd.Asif. She has a claim against the post of Mohd.Kalim and that is so evident from the appointment order of respondent No. 4 in this writ petition for the year 199697. Although managementpetitioner in para No. 9 of the written statement before the School Tribunal avers that respondent No. 2 Mohd.Asif and respondent No. 4 Rashida Begum were appointed against the same post, that contention is patently false due to following reasons - (1) that Rashida Begum claims her appointment as against post of Mohd.Kalim and; (2) because the order of appointment of Rashida Begum clearly goes to show that she was appointed against vacancy which arose due to termination of Mohd.Kalim, (3) in the same written statement the management clearly avers that as a stopgap arrangement she was appointed against the post of Mohd.Kalim and (4) in the writ petition filed by Rashida Begum i.e. W.P. No. 2262 of 1999, she makes following averements.
6(A). The petitioner humbly submits that, she came to be appointed as an Assistant Teacher by the respondent No. 2 on 11/2/1993, on the post which was lying vacant after the termination of one Assistant Teacher Mohd.Kalim.
10. It may be pointed out further that Note No. 2 below the appointment order of Rashida Begum - respondent No. 4 (Annexure R4) clearly says that since High Court has granted stay in the writ of Mohd.Kalim, she is appointed against that vacancy. At the cost of repetition, it must be observed that Rashida's appointment was against Mohd.Kalim and there is no question of two persons putting up the claim against the same vacancy for a teacher holding qualification of S.S.C. D.Ed. The appointment of respondent No. 2 was made against S.S.C. D.Ed. vacancy. The learned Judge of the Tribunal observed as under with regard to the procedure followed for appointment of respondent No. 2 Mohd.Asif.
22. It is further case of the appellant that his appointment was made by following lawful recruitment process. The respondent management has not seriously disputed the pleading of the appellant on this point. The appellant has produced on record the copy of proposal forwarded by management seeking approval to the appointment of the appellant to the EO. The said proposal is dated 30.3.1998. As per said proposal, the appointment of the appellant was made by following lawful recruitment process and requested the EO to grant approval to his appointment. The copies of the documents were attached with the proposal viz. 1) Appointment order, 2) joining report, 3) Resolution of School Committee, 4) Interview sheet, 5) Staff approval, 6) List of the name of working teachers, 7) Time table, 8) Cutting of advertisement, 9) Marksheet and certificate and 9) Proforma No. 1. These documents is not disputed by the respondent management. The EO has also not denied that those documents were not received to him with the proposal. It is clearly established that the appointment of the appellant was made by following lawful recruitment process. Thus, it proves second and one of the recruitment as provided by Section 5 of the Act and Rules thereunder.
This shows that when proposal for approval was forwarded to Education Officer, all those documents were forwarded. The appointment of Mohd.Asif i.e. respondent No. 2 was, therefore, apparently made by following the procedure laid down for regular appointment.
11. The management's stand in respect of appointment of Rashida Begum - respondent No. 4 may be reproduced here from their written statement before the School Tribunal, which is as follows:
As to para No. 3: That the contents in this para are denied specifically because it is a fact that a services of the Mohd.Kalim Sheikh Chand was terminated w.e.f. 8/2/1993. Then after initially Smt. Rasheeda begum come to the appointment in 1993 for to avoid loss of students. Bu she is not qualified to appoint against the vacancy created by exist of Mohd.Kalim Sheikh Chand. Due to this Education Officer issued letter dated 15/3/1993 and refused to grant approval to the appointment of Smt. Rasheeda Begum.
Then after respondent Management again issued order of appointment dated 2/8/1996 in the name of Smt. Rasheeda Begum and appoint him as Assistant Teacher which is the post for the candidate having qualification S.S.C. D.Ed. or H.Sc. D.Ed. This post is different from the post which is previously occupied by the Mohd.Kalim Sheikh Chand.
It is submitted that Education Officer granted approval to the appointment of the Smt. Rasheeda Begum for the year 199697. No approval was granted to the Smt. Raseeda Begum subsequently. Even though then Head Master without any power allowed to Smt. Rasheeda 'Begum to continue in service. In the mean time appellant was also appointed as Assistant Teacher on the same post since 30/.3/1998 President of of respondent Management found that there is one post and in which the appellant and Smt. Rasheeda Begum is also serving and hence president has written a letter dated 1/8/1998 to the Head master and informed him that name of the appellant and Smt. Rasheeda Begum be removed from the muster roll. Accordingly name of Smt. Rasheeda Begum was removed from the muster roll. But there after it appear that the Head Master allowed to Smt. Rasheeda Begum come to school therefore there are two employees in one post. All these facts are also disclosed by the respondent Management by way of the contents in application for recalling the order dated 10/6/2005 before the Hon'ble High Court in W.P. No. 17 2262/99.
12. Following things become more clear from this averements 1) Rashidabegum respondent No. 4 was appointed in 1993 against vacancy due to termination of Mohd.Kalim, 2) Education Officer withdrew the approval as she was not qualified to be appointed against the vacancy of Mohd.Kalim, 3) There was another separate post for S.S.C. D.Ed. candidate, 4) She was rightly appointed on that post and approval was granted but subsequently revoked, 5) Without any authority the headmaster allowed Rashida Begum to work on the said post, 6) in the meantime, respondent No. 2 Mohd.Asif was appointed on same post on 30/3/1998, 7) Rashida's name was even removed from the muster roll and she continued to work in spite of that.
Out of the above contentions, the contention that in 1996 she was appointed against post of H.S.C.D.Ed. is patently false as can be seen from Annexure R4, Note No. 2, which is in Marathi, which is 18 produced here after translation.
2) The said appointment has been made on the post lying vacant due to the stay order passed by the Hon'ble High Court of Bombay, Nagpur Bench in the case of relieved assistant teacher Mohd. Kalim Sheikh Chand.
13. It is also clear that there is a permanent post available for nongraduate trained teachers and respondent No. 2 was appointed against that post. Further it is clear that respondent No. 4 Rashida Begum was not, in fact, appointed after 1997 at all as her appointment was for one year under appointment letter dated 2/8/1996. She having not been appointed against the post reserved for H.S.C. D.Ed. she could not lay her claim against post of H.S.C. D.Ed. Further it is clear that management had not appointed her after 19961997 to any post. Rashida Bnegum - respondent No. 4 wants to resist the reinstatement of Mohd.Asif on the ground that she has been working in school from 1993 and has thus completed more than two years. She may have, but we have seen that she herself 19 pleads that her initial appointment was against post of Mohd.Kalim in 1993. Even 1996's last order shows that her appointment was against Mohd.Kalim's vacancy. She could not be appointed permanently or on probation against this vacancy the same being reserved for trained graduate. Her appointment, therefore, every year must be assumed to be temporary and against the temporary vacancy. The pleadings of the management as pointed out earlier are that respondent No. 2 Mohd.Asif was appointed in the vacancy of S.S.C. which was clear vacancy admittedly. His appointment was, therefore, rightly held to be legal by the Tribunal.
14. The appointment of respondent No. 2 is terminated because Education Officer has withdrawn the approval. This can be no ground for revocation of an appointment. This can be no ground to terminate the service which otherwise cannot be terminated. Respondent No. 2 was appointed on 30/3/1998 on probation for a period of 2 years and the appointment was even approved by the 20 Education Officer. Annexure 'J' dated 23/9/2005 is the letter of the Education Officer - respondent No. 3 whereby he withdrew the approval to the appointment of respondent No. 2 due to the pendency of the petition. It is clear that on this letter the termination order dated 12/11/2005 (Annexure R 3) was issued. On 12/11/2005, respondent No. 2 had completed service of seven years. His probation period was completed in the year 2000. He became a deemed permanent employee in the year 2000 itself. Obviously his service could no be terminated without holding a valid enquiry. No enquiry is held in the matter. The services must be, therefore, held to be wrongly terminated. The decision of the Tribunal is correct. There is no substance in the writ petition. It is dismissed with costs.
Shri Samarth, learned Counsel for the petitioners submits that operation of the order of the School Tribunal be stayed for the period of four weeks. Since there was already stay to the operation of the School Tribunal during the pendency of the Writ petition, the 21 said order shall continue to be stayed for a period of four weeks.