Shri Mahavir Marwadi School Society and Others vs Manjulata and Others

Z.A. Haq, J.—The petitioners management take exception to the order passed by the School Tribunal, allowing the appeal filed by the respondent No. 1-employee and directing the petitioners to pay the arrears of salary of the respondent No. 1 for the period from 15-01-1997 till 02-09-1998.

The respondent No. 1-employee claimed that she was appointed in the school administered by the petitioner No. 1-management, on 11-02-1991 on probation period of two years. According to the respondent No. 1, she was appointed in clear and permanent vacancy. The respondent No. 1 claimed that she completed the probation period successfully and acquired status of confirmed employee. The services of the respondent No. 1 came to be terminated by the order dated 12-12-1996, the termination being with effect from 15-01-1997. The respondent No. 1 challenged the termination order before the Tribunal.

The petitioners had not filed any reply before the Tribunal.

The Tribunal after considering the material on record placed by the respondent No. 1, by the impugned order, concluded that the respondent No. 1 was appointed in clear and permanent vacancy on probation period of two years and she worked in the school for more than five years and acquired the status of confirmed employee. The Tribunal concluded that the termination of services of the respondent No. 1 was illegal.

During the pendency of the appeal before the Tribunal, the respondent No. 1 came to be appointed in the school administered by Zilla Parishad, Bhandara on 03-09-1998. The respondent No. 1 had filed pursis before the Tribunal pointing out this fact and expressing that she was not interested in rejoining the school administered by the petitioner No. 1-management. The respondent No. 1 restricted her claim for the arrears of salary for the period from 16-01-1997 to 02-09-1998.

The Tribunal upheld the claim of the respondent No. 1 and accordingly directed the petitioners to pay the arrears of salary to the respondent No. 1.

The petitioners being aggrieved by the order passed by the School Tribunal, have filed this writ petition.

Shri V.R. Mundra, the learned Advocate for the petitioners has submitted that the respondent No. 1 has not been able to show that her appointment was made after following the procedure prescribed by Section 5 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (in short "Act of 1977"). It is further contended that the respondent No. 1 has not placed any material on the record to show that her appointment was approved by the Education Officer. It is submitted that the Tribunal has not adverted to the relevant points and it has resulted in the erroneous order. It is submitted that the petition be allowed, the impugned order be set aside and the appeal filed by the respondent No. 1 be dismissed.

Ms. Gordey, the learned Advocate for the respondent No. 1 has submitted that the relevant documents had been placed on the record and they are properly considered by the Tribunal and it cannot be said that the Tribunal has committed any error of jurisdiction which necessitates the interference by this Court in the extra ordinary writ jurisdiction. The learned Advocate has pointed out from paragraph 13 of the impugned order the relevant considerations by the Tribunal, relying on the documentary evidence i.e. the communication from the Education Officer to the Secretary of the petitioner No. 1. It is further submitted that the petitioners have not contested the claim of the respondent No. 1 before the Tribunal and they had not filed any reply or documents before the Tribunal to oppose the claim of the respondent No. 1 and therefore, they cannot be permitted to plead factual aspects in the petition before this Court. It is submitted that the petition be dismissed with costs.

After going through the appointment order and the other documents placed on the record of the writ petition, I find that the Tribunal has dealt with all the relevant aspects. The Tribunal has recorded finding that the respondent No. 1 had worked in the school administered by the petitioner No. 1, from 11-02-1991 till her services came to be terminated by the order dated 12-12-1996. The Tribunal has considered the communication from the Education Officer to the Secretary of the petitioner No. 1 and the consideration of the representation of the respondent No. 1 by the Deputy Director of Education, Nagpur and after considering the above mentioned documents, the Tribunal has recorded the finding of fact that the respondent No. 1 had worked in the school for more than five years. The petitioners have not explained as to what prevented them from placing on record of the Tribunal the relevant documents to show that the appointment of the respondent No. 1 was neither as per the requirements of Section 5 of the Act of 1977 nor her appointment was in clear and permanent vacancy. In the absence of any challenge raised by the petitioners in this regard, in my view, it was not necessary for the Tribunal to record findings on the point as to whether the respondent No. 1 came to be appointed as per the provisions of Section 5 of the Act of 1977. I am fortified, on this point, by the judgment given by the Division Bench of this Court in the case of Sadhana Janardhan Jadhav Vs. Pratibha Patil Mahila Mahamandal and Vijay Ramesh Bhalerao, (2013) 1 ABR 611 : (2013) 1 ALLMR 497 : (2013) 1 BomCR 269 : (2013) 136 FLR 1055 : (2013) 2 MhLj 484 .

Though the petitioners had not filed their reply before the Tribunal, the respondent No. 1 had fairly pointed out before the Tribunal that she had joined as Assistant Teacher in the school administered by Zilla Parishad, Bhandara with effect from 03-09-1998 and that she was not interested in rejoining the school administered by the petitioner No. 1. The respondent No. 1 had restricted her claim for the arrears of salary for the period from 16-01-1997 to 02-09-1998. The conclusions of the Tribunal that the termination order is illegal, cannot be faulted with. The petitioners have not been able to show that the respondent No. 1 was gainfully employed during the period from 16-01-1997 till 02-09-1998. In these facts, I see no reason to interfere with the order passed by the Tribunal directing the petitioners to pay the arrears of salary of the respondent No. 1 for the period from 15-01-1997 till 2-09-1998.

The learned Advocate for the petitioners has submitted that the respondent No. 1 had been working in a sanctioned post and the petitioners are entitled for reimbursement of the grants as they had not claimed the grants for the above referred period as no one else was appointed in that post. The entitlement of the petitioners to claim reimbursement of the grants has not been dealt with in this petition.

The writ petition is dismissed. In the circumstances, the parties to bear their own costs.