Farhana Banu Mohamed Ayub Vs. Jadeed Anjuman-e-taleem, - Court Judgment

Excerpt:
- section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] admission to professional colleges - technical courses - publication of brochure on basis of which candidates seek admission to various institution keeping in mind their merit and preference of colleges held, for ensuring adherence to proper appreciation of an academic course, it is essential that the method of admission is just, fair and transparent. the first step in this direction would be publication of a brochure on the basis of which the applicants are supposed to aspire for admission to various institution keeping in mind their merit and preference of college. brochure, firstly has to be in conformity with law and the statutory scheme notified by the competent authority. it is a complete and composite document as it deals with the scheme for conducting their entrance examinations, declaration of results, general instructions and method of admission, etc. this brochure is binding on the applicants as well as the authorities. this brochure or admission notification issued by the state or other competent authority cannot be altered at a subsequent stage particularly once the process of admission has begun. there is hardly any exception to this accepted rule of law. section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre,jj] admission to professional colleges - technical courses - approval to additional seats or to start new course - cut off dates held, the settled principle of law is that merit of the applicant is the primary criteria which would determine his rank as well as the college where he would be entitled to admission. this rule should not be frustrated as it will tantamount to entirely upsetting the object of admissions based on merit oriented method and would cast cloud on the fairness and transparency of the method of admission. one of the ways in which merit can be defeated is allowing increase in the intake strength or commencement if new colleges beyond cut-off date and admissions beyond the last date specified in the notification/calendar issued by the concerned authorities. this can be illustrated by giving an example. college a which is running a professional course like engineering or mba etc. has an intake capacity of 60 seats which has duly been notified in the information brochure. however, after the cut-off date, approval is granted by the aicte and thereafter, the process is taken up by the state and the intake capacity of the college is increased by 30 more seats. these seats would obviously, not be notified in the information brochure and the candidate who are meritorious and for whom college a; be the college of reference could not get seats or give preference as the seats were limited. none had the proper knowledge about the increase in intake of seats though at a much subsequent stage and may be even after the last date of admission is over either by themselves or under the order of the court even it is put on the internet or given in the newspaper, the candidates of higher rank or meritorious candidates would not be able to avail of that benefit because they have already submitted the testimonial, have paid their fees and the courses have commenced. in that situation, for variety of reasons, they may not be able to take admission in the institution of their higher preference while the candidates of much lower merit will be admitted to that course. besides defeating the merit, it has been commonly noticed that the late admissions made by the colleges directly effect notified candidates who have questioned it more than often as their admission process is not so just, fair and transparent which has given rise to the litigation. it is also a kind of back door entry method. another serious consequence that result from such admissions is shortening of the academic courses in an undesirable manner. it is expected of other candidate selected to a professional course that he or she would complete the course in its entirety and not by missing more than a month or so in joining the said course. this results in lowering the excellence of education as well as harms the academic standard of professional education. admission to professional colleges: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] technical courses - held, in process of admission to professional colleges relating to technical courses, primarily three institutional bodies are involved. (i) all india technical council for technical education, (ii) state of maharashtra through director of technical education and (iii) university to which such institution is affiliated the role of all these institutions in distinct and different but for a common object. primary of the rule of all india council for technical education (aicte) is now well settled but that certainly does not mean that role of the state government and for that matter the university is without any purpose or of no importance. the council is the authority constituted under the central act with the responsibility of maintaining education standards and judging upon the infra-structure and facilities available for imparting such professional education. its opinion is of utmost importance and shall take precedence over views of the state as well as that of the university. the concerned department of the state and the affiliating university has a role to pay but it is limited in its application. they cannot lay down any guidelines or policies which would be in conflict with the central statute or the students laid down a by the central body. state can frame its policy for admission to such professional courses but such policy again has to be in conformity with the directives issued by the central body. while the state grants its approval and university its affiliation for increased intake of seats or commencement for a new course/college, its directions should not offend and be repugnant to what has been laid down in the condition of approval granted by the central authority or council. what is most important is that all these authorities have to work ad idem as they all have a common object to achieve i.e. of proper imparting of education an ensuring maintenance of proper standards of education, examination and ensuring proper infrastructure for betterment of educational system. only if all these authorities work in a co-ordinated manner and with co-operation they would be able to achieve the very object for which all these entities exist admission to professional courses: [swatanter kumar, c.j.,a.p. deshpande & smt. nishita mhatre, jj] admission schedule - interference by courts held, all the expert bodies viz. aicte as well as directorate of education in consultation with the departments of the state regulating the process of admission and maintenance of standards of education had notified a legal binding document specifying dates and schedule for various matters in relation to admission of students and commencement of courses. there has to be so compelling circumstances and grounds before the court to interfere with the prescribed schedule. it is neither so arbitrary nor so perverse, keeping in view the essential features relating to imparting education to professional courses that it should invite judicial chastisement to the extent of laying down entirely new schedule. merely because there has been some delay on the part of either of these authorities to timely grant of either of these authorities to timely grant or decline approval and permission to commence a course per se would not be sufficient ground for disturbing the notified schedule and timely commencement of courses. - in the present case, respondents 1 to 3 had chosen to retain the clause in the proforma of the appointment order which specifies that the appointment was on probation under section 5(2). the appointment order issued to each of the petitioners clearly stipulates that their appointment was on probation for a period of two years from 1.8.1995. thus, it must be held that the appointments were made on a probationary basis for two years.nishita mhatre, j.1. the petitioners in both these petitions have challenged the common order dated 17.7.1997 passed by the school tribunal in nasik appeal nos. 13 of 1997 and 14 of 1997. both the petitioners were appointed as primary teachers in clear permanent vacancies. they were appointed on 1.8.1995. they were informed that their appointment was on probation for two years. the appointment order issued to each of the petitioners indicates that the appointment was not on a temporary basis but on a probation for a period of two years from 1.8.1995. an order terminating the services of both the petitioners was issued on 30.3.1997 which was to take effect on 30.4.1997.2. appeals were preferred by each of the petitioners before the school tribunal. the tribunal stayed the orders of termination pending the appeals. respondent nos. 1 to 3 pleaded in their written statement that the approval was granted by the education department to the appointments of the petitioners only upto 30.4.1997 and that, therefore, their services had to be terminated on that day. according to the respondent nos. 1 to 3, they had inadvertently stated in the appointment letter that the appointment of the petitioners was on probation, although approval had not been granted by the education department. it was also pleaded that the strength of the students in the junior college was reduced. respondents 1 to 3 further contended that the appointment orders issued to the petitioners were in violation of the procedure laid down under the maharashtra employees of private schools (conditions of service) regulation act, 1977 (in short 'm.e.p.s. act') and rules framed thereunder.3. contrary to the stand taken by the respondent nos. 1 to 3, respondent no. 4 i.e. the education officer filed his written statement contending that respondent nos. 1 to 3 had not observed the rules 26 and 27 of the m.e.p.s. rules. thus, the education officer supported the stand of the petitioners.4. the school tribunal however dismissed the appeals preferred by both the petitioners. it came to the conclusion that the nomenclature used to describe the status of the petitioners in their appointment letters would not conclusively prove that the appointment was even on a clear permanent vacancy. the tribunal concluded that since the approval was granted to the appointment of the petitioners only upto 30.4.1997. the services were terminated correctly by respondent nos. 1 to 3. the tribunal then held that the appointments of the petitioners were in fact on a temporary basis for a period of two years and, therefore, they were not entitled to reinstatement after their services were terminated.5. with the assistance of the learned advocates appearing for both the petitioners and the respondents, i have perused the record before me and i find that the school tribunal has passed an erroneous order which requires to be set aside. rule 9(5) of the m.e.p.s. rules stipulates that, an appointment letter must be in the form annexed as schedule 'd' to the rules. in the present case, respondents 1 to 3 had chosen to retain the clause in the proforma of the appointment order which specifies that the appointment was on probation under section 5(2). the appointment order issued to each of the petitioners clearly stipulates that their appointment was on probation for a period of two years from 1.8.1995. thus, it must be held that the appointments were made on a probationary basis for two years. a probationer is entitled to continue in service in a permanent vacancy for a period of two years and on completion of this period of two years he is deemed to have been confirmed in service under the provisions of section 5(2) of the m.e.p.s. act. admittedly, the services of the petitioners were terminated on 30.3.1997, even prior to the probation period coming to an end. however, such a termination could be effected by the respondent nos. 1 to 3 during the period of probation only when the work or behaviour of the probationer was not satisfactory. while terminating the services of a probationer on these grounds, it is incumbent on the management to give him one month's notice or to pay him salary in lieu of notice. admittedly, there is no material on record indicating that the services of the petitioners have been terminated due to unsatisfactory work or unsatisfactory behaviour. nor is there any evidence of a notice or salary in lieu of notice being given to the petitioners. section 5(2) of the m.e.p.s. act stipulates that, any appointment made in a clear vacancy shall be made for a period of two years. the education officer in the present case has, in his written statement filed before the tribunal, contended that the appointment was against a clear permanent vacancy and the petitioners ought to have been continued by the respondents 1 to 3 as deemed permanent employees under section 5(2). thus, the termination of services effected by respondent nos. 1 to 3 is illegal and contrary to law.6. it is the case of the respondent nos. 1 to 3 that there was a reduction in the strength of the students and reduction in the work-load available for the teachers and it was, therefore, necessary to reduce the staff strength. rule 26 deals with retrenchment on account of abolition of posts. under rule 26, a detailed procedure is to be followed while retrenching a teacher. assuming that the case of the respondent nos. 1 to 3 is to be accepted that there was reduction in the strength of the students and therefore they were compelled to terminate the services of the petitioners, they could do so only after declaring the petitioners surplus as they would be deemed to be permanent.7. admittedly, the provisions of rule 26 have not been complied. respondent nos. 1 to 3 have terminated the services of the petitioners only because approval was not accorded by the education officer to their appointments after 30.4.1997. in view of the full bench judgment in the case of st. ulai high school and anr. v. devendraprasad jagannath singh and anr. reported in 2007 all mr 1, the continuation of an employee in employment is not dependant on the approval being granted for her appointment. as held by the full bench, the grant of approval is for the purposes of securing grant-in-aid from the government. it has no relevance to the tenure of appointment of any employee nor is the employment dependant on the approval being granted by the education officer. therefore, looked at from any angle, the order of the school tribunal impugned in both these petitions is incorrect and is, therefore, required to be set aside.8. affidavits have been filed by respondent nos. 1 to 3 indicating that some teachers have been appointed by them during the pendency of the petition and today there are no vacancies. in my view, this cannot be the reason for denying reliefs to the petitioners.9. the impugned order in nasik appeal nos. 13 of 1997 and 14 of 1997 is set aside.10. both writ petitions are allowed. rule made absolute with costs.11. the learned advocate for the respondents seeks a stay of this order. stay refused.