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Judgment
Rule. Rule made returnable forthwith and heard finally with consent of parties.
Present petition takes exception to judgment and order dated 02.06.2025 passed by Presiding Officer, School Tribunal, Nashik in Appeal No.10 of 2017, thereby rejecting appeal filed by petitioner/employee under Section 9 of MEPS Act.
The petitioner holds qualification of HSC and D.Ed. The respondent is a registered educational institution and runs H.S. Borase High School and Junior College, Kapadne. The school receives grant-in-aid from State Government. Since post of teacher was vacant in respondent-institute, an advertisement dated 10.06.2010 was published in daily newspaper “Apla Maharashtra” inviting applications from eligible candidates for appointment on post of Assistant Teacher with H.S.C., D.Ed. qualification from S.C. and S.T. category. The petitioner being eligible and qualified, applied in response to advertisement. After going under selection process, she was declared as successful candidate and given appointment order dated 15.06.2010 on the post of ‘Shikshan Sevak’ for the period from 15.06.2010 to 31.05.2013. The appointment of petitioner was approved by resolution of management.
In deference to appointment order, petitioner joined services on 15.06.2010. Thereafter, management passed resolution dated 27.06.2010 to forward a proposal to education officer seeking approval to petitioner's appointment, which was ultimately granted by order dated 13.08.2013 with effect from 15.06.2010 for three years.
It is contention of petitioner that headmaster of school restrained her from signing muster roll from 24.02.2012. She made complaint to respondent-management, who passed a resolution dated 31.03.2012 directing headmaster to permit petitioner to sign muster roll. Although she continued to sign muster roll, her salary bill was not forwarded to Education Officer. She made complaint dated 03.02.2014 and 18.02.2014 to respondent-management seeking necessary action for release of her salary. Since management failed to take cognizance of her complaint, she approached Education Officer regarding grievance of her salary. The Education Officer directed headmaster of school to prepare salary bill of petitioner and submit same to his office. Because of such action from Education Officer, respondent no.2 restrained petitioner from entering into school with effect from 26.06.2014. Even management did not allow her to enter into school. In backdrop of aforesaid events, petitioner approached School Tribunal by filing appeal under Section 9 of Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (‘MEPS Act’ for short) with case of otherwise termination.
Respondent No.2/Headmaster resisted appeal by filing affidavit in reply contending that in the year 2010-11, reserved post for S.C. and S.T. category was not available on establishment of school. An inadvertent advertisement was published depicting availability of reserved post. The appellant is appointed as open candidate. Her appointment is not legal. Therefore, she was prevented from signing muster roll or attending school. Although respondent-management passed a resolution dated 31.03.2013 allowing appellant to sign muster roll, she did not attend school till April 2012. Even she did not sign muster roll during that period. Since petitioner herself failed to attend her duties w.e.f. 04.09.2012, there is no question of her oral termination.
The School Tribunal after considering rival contentions dismissed appeal observing that petitioner failed to prove that she was appointed by following due process of law in terms of Section 5 read with Rule 9 of M.E.P.S. Rules.
Heard Mr. Prakash B. Patil, learned advocate appearing for petitioner and Mr. Shrikant Patil, learned advocate appearing for respondent nos. 3 and 4.
Perusal of record indicates that petitioner possesses qualification of H.S.C., D.Ed. She belongs to S.C. Category. Respondent No.3 issued advertisement dated 10.06.2010 in daily newspaper “Apla Maharashtra” inviting candidature of eligible candidates against vacancy of Assistant Teacher from S.C. and S.T. Category. Admittedly, petitioner was interviewed and she was given appointment vide letter dated 15.06.2010 as Shikshan Sevak for the period from 15.06.2010 to 31.05.2013. Immediately, she joined her duties. The management forwarded proposal for approval of her services, which was belatedly approved vide order dated 13.08.2013 issued by Education Officer (Secondary), Zilla Parishad, Dhule.
Mr. Patil, learned advocate appearing for petitioner brought to notice of this Court that two posts of non-graduate trained teachers were available on establishment of respondent-school. Accordingly, petitioner was given appointment order. The record indicates that there is no dispute as to qualification, appointment or approval of petitioner's services. It is also not the case of management that petitioner's services were terminated by following due process of law. She was never given show-cause notice for so-called absence from duties, nor departmental inquiry was initiated against her. The only defense employed on behalf of respondents in support of otherwise termination of petitioner is that her appointment was not made in accordance with law. The School Tribunal accepted such defense observing that petitioner failed to show vacancy on establishment of school or management had issued advertisement with prior approval of Education Officer. This Court finds that observations of School Tribunal are not in consonance with well established position of law.
In present case, petitioner responded to advertisement issued by management. She was duly qualified. She was interviewed by management and then appointment was issued to her, which is belatedly approved by Education Officer. The impugned order nowhere depicts the basis on which School Tribunal concluded that petitioner's appointment was dehors the procedure prescribed under law. If management has not procured permission before issuing advertisement, that itself would not be a ground to discard entire selection process and consequential appointment of employee. Admittedly, petitioner discharged her duties from date of her appointment till date of otherwise termination. There is sufficient material to indicate that mandatory procedure contemplated under Section 5 of M.E.P.S. Act read with Rule 9 has been followed.
This Court in case of Salvation High School Vs. Rashmi Upadhyay and Others reported in 2009 AIR Bom R(2) 227 held that Shikshan Sevak is an employee under the MEPS Act and is entitled to remedies available under the Act. In present case, respondents defense that there was no vacancy fells flat since official record, correspondence made by management itself indicates availability of vacancy. Even, advertisement speaks for itself. No contra material is brought to notice of this Court depicting appointment of petitioner was in excess than available post. In result, otherwise termination of petitioner cannot be sustained in law.
So far as back-wages is concerned, petitioner has not tendered affidavit that she was not gainfully employed elsewhere after termination. Even management has not brought material to show her employment after termination. Hence, she would not be entitled to full back-wages but in absence of evidence about her employment, 50% back-wages needs to be awarded from management. Hence, following order :
ORDER
Writ Petition is partly allowed.
The judgment and order dated 02.06.2025 passed by Presiding Officer, School Tribunal, Nasik, is quashed and set aside. Petitioner’s appeal is partly allowed.
The respondent nos.3 and 4 are directed to reinstate petitioner granting continuity of service and 50% back-wages from date of termination till date of reinstatement.
Rule is made partly absolute in above terms.