President, Safa Education Society, Nanded & Ors. vs Shamshad Begum & Anr.

Heard finally with consent of learned advocates for the respective parties.

The present petition is filed in order to challenge judgment and order dated 17.10.2015 passed by the learned Presiding Officer, School Tribunal, Latur Region, Latur, in Appeal No.12 of 2013. By the said judgment, the learned Tribunal has allowed the appeal filed by Respondent No.1 by quashing and setting aside her termination and directing the petitioners to reinstate her in service with continuity and back wages from the date of filing of appeal, i.e., 05.03.2013 and onwards.

For the sake of convenience, Petitioner Nos. 1 and 2 will be referred as “management” and respondent No.1 will be referred as “employee”.

The employee had filed the aforesaid appeal under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter referred as the “the MEPS Act”, for brevity), inter alia contending that she was appointed as Headmistress of Safa Urdu Primary School, Vazirabad on 12.06.2000 and was working on the said post continuously, without any interruption in service. She has stated that she had proceeded on maternity leave from 18.06.2009 till 18.09.2009.

She stated that when she went to the school after the maternity leave was over to join the services, she was informed that another teacher was appointed as a Head and that, if she wanted to continue in service, she should work as a Teacher instead of working as Headmistress. She has stated that she was restrained from signing the muster roll of the school with effect from 18.01.2010. She has stated that she had issued communications to the Collector, Education Officer and Director of Education in this regard on 15.03.2010, 22.03.2010 and 07.07.2010, respectively.

According to the employee, she holds qualifications of S.S.C. (1988) and D.Ed. (1990), which is the requisite qualification for appointment to the post of primary teacher. It is her case that she was appointed on the post of Head in petitioner No.3-school against a clear, vacant and permanent post on 12.06.2000 and that upon successful completion of period of probation, she assumed status of permanent Headmistress in the school. She has stated that she had proceeded on maternity leave from 18.06.2009 to 18.09.2009 and on medical leave from 12.01.2010 to 18.01.2010.

It is her case that, while she was on maternity leave, another teacher was appointed on the post of Head on 15.09.2009 and that the management threatened her to work on the post of Assistant Teacher, failing which her services would be terminated. According to her, she was restrained from signing the muster roll on 18.01.2010, however, she actually rendered service in the school till 28.10.2010 and was conducting classes of Urdu subject. She states that the fact about the management restraining her from signing the muster roll was brought to the notice of the Education Officer (primary), Collector and Deputy Director of Education, Latur, vide letters dated 19.03.2010, 22.03.2010 and 07.07.2010.

The employee had filed a suit for injunction against the management being Regular Civil Suit No.346 of 2010, seeking a decree against unlawful termination of services, which was decreed vide judgment and decree dated 24.02.2012 passed by the learned 2^nd Joint Civil Judge, Senior Division, Nanded whereby the learned Civil Court had restrained the petitioners (defendants in civil suit) from restraining her from performing her duties as Head or teacher of the school without following due process of law. She has stated that although she continued to work in the school till summer 2012, on 15.06.2012 and 16.06.2012, she was restrained by the management from performing her duties in spite of the decree of perpetual injunction in her favour.

The petitioners appeared in the appeal and filed their written statement, inter alia, claiming that there was no clear and vacant post of Head in the year 2000, when the employee claimed that she was appointed on the said post. It was their contention that the employee was in fact never appointed as alleged by her. A contention was raised that she was over age at the time of her alleged appointment and, therefore, not qualified to be appointed as Head or teacher in the school. It was stated that petitioner No.3-school received recommendation in the year 2002. It is stated that since 18.06.2009 the teacher was continuously absent and there was no question of sanctioning any maternity leave.

In view of the rival pleadings, the learned School Tribunal framed points for determination pertaining to the claim of the employee as being appointed as Headmistress on a clear vacant post, her alleged otherwise termination on 18.01.2010 and its reliefs that could be granted to her.

The Learned Tribunal has held that although the order was issued on 17.08.2002, it is specifically stated in the order that the permission to run the school was granted on a permanent no-grant basis with effect from June 2000.

The learned Advocate for the management has not seriously contested finding on the said issue.

The core dispute between the parties pertains to appointment of the petitioner on the post of Head on 12.06.2000 as contended by her. The Learned Tribunal has held that the employee was holding the qualifications of S.S.C. and D.Ed. and had also acquired degree of B.A. in the year 1994 and M.A. in the year 1996. It is accordingly held that she was holding the requisite qualifications in the year 2000.

The Learned Tribunal has referred to the muster roll of the school from June 2000 to April 2006 and has observed that the employee was the senior-most teacher in the school. Dealing with the principal contention of the management that the appointment itself was illegal, since the employee was more than 28 years of age on the date of alleged appointment, the learned Tribunal has rejected the contention on the ground that upper age can be relaxed with the permission of Deputy Director of Education and the management cannot take advantage of its own wrong of failure to seek relaxation, as is permissible under the Maharashtra Employees of Private Schools in (Conditions of Service) Rules, 1981 (hereinafter referred to as “the MEPS rules”).

Mr. R.J. Godbole, learned Advocate for the petitioners has vehemently argued that the employee never appointed on the post of Head, as is contended by her. It is his contention that the employee was allowed to work in the school on an honorary basis on her request, since she was wanted to acquire experience of working in a school. It is contended that the appointment was also not made after following the prescribed procedure and the same was also completely illegal, since the employee was more than 28 years old as on the date of her alleged appointment. In support of his contention, the learned advocate draws attention to Rule 9(4)(a) of the MEPS Rules, which provides that for appointment to any post in a primary school, a candidate should not be more than 28 years of age. He points out that the upper age limit can be relaxed in case of female candidates only with the previous permission of the Deputy Director. The learned advocate contends that, admittedly, such permission is not obtained and, as such, the appointment is clearly illegal and further that such an appointment will not confer any right upon the teacher to the post. The learned advocate also argues that the employee has miserably failed to prove that she was working in the school. He states that she could not produce any appointment order in her favour in support of her contention of working in the school. It is also argued that, although the employee has come up with the case of termination of service on 18.01.2010 by way of earlier termination, she has herself stated that she has rendered service in the school till June 2012.

Per contra Mr. R. R. Sheikh, the learned Advocate for the employee justifies the judgment and order passed by the learned School Tribunal. The learned advocate argues that the fact that the employee was appointed on the post of Head in the school is affirmatively held in her favour vide judgment passed by the learned Civil Court in the earlier civil suit. He argues that after having rendered around 12 years of service, the employee could not have been non-suited on the ground that she could not produce order of appointment issued in her favour. The learned advocate contends that the muster roll produced on record clearly established that the employee was working on the post of Head in the school. As regards the contention with respect to Rule 9(4)(a) of the MEPS Rule, the contention of the learned advocate is that the school is a minority educational institution and, therefore, in view of Section 3(2) of the MEPS Act, the provisions of the Act are not applicable to recruitment for the post of head. The learned advocate, therefore, contends that the appointment of the employee cannot be said to be illegal merely because she was 28 years and 11 months old as on the date of her appointment. He argues that Rule 9(4)(a) of the MEPS Rules will not be applicable to the appointment of the employee, since the school is a minority institution.

The learned advocate for the employee also places reliance on judgment of this Court in the case of Sayyad Yousuf s/o. Sayyad Moosa v. State of Maharashtra and Others^{11.2017 (2) All MR 751}, in support of his contention that the post of Head is not required to be notified to the Deputy director.

In reply to this legal submission regarding Section 3 (2) of the MEPS Act, Mr Godbole contends that exemption from applicability of the provisions of the Act is applicable only with respect to posts, which are notified by the management to the Director or Deputy Director of Education. The learned Advocate contends that the post of Head was not so notified and, therefore, the employee cannot take shelter under Section 3(2) of the MEPS Act to contend that provisions of the Act and the Rules are not applicable to her appointment.

Mr Godbole, vehemently argues that Section 3(2) categorically states that the provisions of the Act and the Rules shall not apply to recruitment to the Head of a minority school and to any other persons (not exceeding three), who are employed in the school, provided their names are notified by the management. The Learned advocate argues that the words, “Head of a minority school” and “any other three persons are joined by conjunctive term, “and” he, therefore, argues that requirement of notification of the names is applicable to the post of “Head” and three other persons. The learned advocate argues that unless the post of “Head” is also notified by the minority institution to the Director or Deputy Director, appointment of “Head” will have to be made in accordance with the provisions of the Act and the Rules framed thereunder.

The learned advocate places reliance on Division Bench judgment of this Court in the case of Altaf Ahmed Rasool Saheb Jakler Vs. The State of Maharashtra through the Secretary, School Education and Sports Department and Others^{22.2026:BHC-KOL:3669-DB}, in support of his contention.

Section 3(2) of the MEPS Act reads as under:-

Section 5(1) of the MEPS Act imposes an obligation on the management to fill in every permanent vacancy in a private school by making appointment of a duly qualified person in the manner prescribed. The words in the manner prescribed in Section 5(1) will imply that appointment of every post in a private school is required to be made in accordance with the provisions of the MEPS Act and Rules. Section 3(2) is in the nature of exception to Section 5(1). Section 3(1) provides that the provisions of the MEPS Act apply to all private schools in the State irrespective of the fact whether they receive grant-in-aid from the state exchequer or not. However, Section 3(2) of the Act provides that provisions of the Act will not be applicable to, appointment of Head of a minority school and any other three persons, who are employed in a minority school, whose names are notified by the management to the Director or Deputy Director. Section 3(2) is in the nature of exception to Sections 3(1) and 5(1) of the MEPS Act. Minority institutions are granted exemption from making appointments to the post of head and other three persons in a minority school. The Section, however, provides that the names of the persons should be notified to the Director or Deputy Director of education.

The question which falls for consideration in the present petition is as to whether the name of Head of a minority school is also required to be notified to the Deputy Director of Education to make appointment without following the provisions of the Act.

Perusal of the provision will demonstrate that conjunctive term, “and” is employed between the clauses, “recruitment of the Head of a minority school” and, “any other persons (not exceeding three) who are employed in such a school”. Rider that names should be notified by the Management to the Director or Deputy Director is introduced by incorporating conjunctive word, “and” after the second clause which refers to three other persons. In view of the aforesaid, the contention of Mr. Godbole is that the requirement of notification of names will be applicable not only to, “other persons (not exceeding three)”, but also to the “Head” appointed in a minority school.

At this juncture, it will be appropriate to refer to definition of the term, “Head” of a school, as defined in Section 2(9) of the MEPS Act which reads as under:-

Perusal of the provision will demonstrate that Head of a school means a person who is in charge of academic and administrative duties and functions of a school. The definition is an exhaustive definition, since the word, “means” is employed in the definition. However, the definition states that a person who is in charge of the academic and administrative duties shall be considered to be Head, irrespective of the nomenclature of the post. The nomenclature of the post may be, Principal, Vice-Principal, Headmaster, Headmistress, Assistant Headmaster, Assistant Headmistress or Superintendent.

Thus, for the purpose of defining role of the Head, exhaustive term “means” is employed, however, for the nomenclature the word “includes” is used in the provision. Reading of definition will, therefore, imply that, irrespective of the nomenclature of the post, a person who is in charge of the academic and administrative duties alone will be treated to be Head of a private school. The responsibilities of the Head of a school are provided under Rule 4 of the MEPS Rules, which include improvement of academic standard, assignment of teaching work, planning and conduct of academic programmes, admission of students and maintenance of discipline, organization and supervision of curricular and co-curricular activities, maintenance of school records, supervision of examinations, assessment of work and teaching and non-teaching staff and observance of rules, regulations and directions issued by Government and its authorities.

Apart from this, the Head also performs work of maintenance of accounts, management of library, laboratories and hostel of the school makes correspondence relating to administration of school and is responsible for following provisions of rules, regulations Government instructions, etc. subject to superintendence and control of the Management. The Head thus performs a pivotal role in the functioning, working and administration of a private school.

Perusal of Section 3(2) will indicate that whereas the post of Head is specified by naming the said post, for the other three posts, which may be filled without following the procedure of recruitment contemplated under the Act, the posts are not specified. Instead, the words used are “any other persons (not exceeding three)”. If the intention was to grant exemption under the said provision to any four employees, the Legislature could have well employed the words, “any persons not exceeding four”. However, the post of Head finds separate mention other than other three persons.

While providing for exemption from applicability of provisions of the Act for the purpose of making appointment, the provision specifically employs the words, “Head” and “other three persons, not exceeding three”. The word, “other” precedes the words, “persons (not exceeding three)” and, thereafter, the rider of notifying the names to the Deputy Director is provided for. This implies that names of three persons, who are appointed without following the procedure contemplated under the Act, other than the Head only are required to be notified. The scheme of the Act is that exemption from the procedure contemplated for appointment can be availed by a minority institution for the post of Head and apart from the post of Head, any three persons can be appointed by the Management by following the prescribed procedure. Since the other three persons to be appointed are not designated by their posts under the provision, there is a requirement of notifying their names to the Deputy Director. The said requirement of notification of name is not applicable to the post of Head. The conjunctive word “and” employed between the words “Head” and “other persons (not exceeding three)” implies that exemption can be availed by minority institution to recruit four persons in all, without following the procedure for recruitment contemplated under the Act and Rules, one of which shall be the Head.

The Division Bench judgment on which reliance is placed by Mr. Godbole does not prescribe that exemption under Section 3(2) from following the recruitment procedure contemplated under the Act can be availed of by a minority institution only if the name of the Head is notified to the Director/Deputy Director. In the said case, there was a dispute in the Management of a minority institution. The minority institution had notified two posts i.e. post of Headmaster and post of Clerk, under Section 3(2) of the MEPS Act. A contention was raised by the petitioners that as per mandate of Section 3(2) of the MEPS Act, the name of persons nominated on the post of Headmaster is required to be notified to the Deputy Director of Education and, if the same is approved, then provisions of MEPS Act are not applicable to such appointment. The controversy in the said case was that in view of dispute between the management, whether name forwarded by any individual would satisfy the requirement of notification under Section 3(2). In the said case, the proposal was rejected by the Deputy Director on the ground that there was dispute in the Management. The judgment makes a reference to the definition of “Management” as prescribed under Section 2(12) of the MEPS Act and holds that the said term means persons or body of persons administering the school and, therefore, no individual had a right to take any decision regarding forwarding name of any person under Section 3(2) and that such decision is required to be taken by the Management by taking appropriate resolution in the meeting. It is held that the Management, i.e., body of persons which administers the school, must take decision either unanimously or, at least, by a majority.

The said case proceeded on the premise that name of Head was also required to be notified to the Director as per Section 3(2) of the MEPS Act. Contention that post of Head is not required to be notified to claim exemption under Section 3(2) of the MEPS Act was not canvassed in the said case and, therefore, the same is also not considered in the said judgment. With respect, the ratio of the said judgment is not that name of Head of a minority school is required to be notified to the Director/Deputy Director in order to claim exemption from applicability of the Act and Rules for making appointment of Head of school.

It will also be appropriate to refer to judgment in the case of Sayyad Yousuf (supra), reliance on which is placed by the learned advocate for the teacher. The relevant observations to which attention is drawn are as under:-

Although, the learned advocate for the teacher contends that this Court has conclusively held that it is not necessary to notify name of Head of a minority school for claiming exemption from recruitment procedure under Section 3(2), I am unable to accept the said contention. As is rightly pointed out by Mr. Godbole, the judgment only refers to a circular dated 21.09.1982 issued by Government of Maharashtra, according to which the name of Head of minority school is not required to be notified for claiming exemption under Section 3(2). However, it must be stated that the provision is interpreted by the circular to mean that post of Head of school is not required to be notified to the Director/Deputy Director for seeking exemption under Section 3(2). For the reasons recorded above, I am in agreement with the interpretation of the provision as is clarified in the said circular.

Initially, Section 3(2) provided that the provisions of the Act shall not be applicable to recruitment, conditions of service and conduct and discipline of Head of minority school or any other persons, not exceeding three, employed in a minority school. The provision came to be amended after the amendment exemption from applicability of the Act was restricted only to recruitment of Head and three other persons in a minority school. The rider with respect to notification of names by the Management to the Director or Deputy Director existed in the provision even prior to its amendment. Therefore, the interpretation of the provision, even after the amendment, that the requirement of notification of names to the Director or Deputy Director shall only be for three employees other than the Head, holds good even after the amendment. Even otherwise, independent of the circular, this Court has interpreted the provision, as above, to mean that the requirement of notification of the names is applicable only for three persons other than the Head and that there is no need for notification of the name of the Head in order to seek exemption under Section 3(2) of the MEPS Act.

For the reasons recorded above the contention that the initial appointment of the teacher on the post of Head on 12.06.2000 is illegal in view of Rule 9(4) of the MEPS Rules, on the ground that she was more than 28 years old on the date of appointment, is liable to be rejected.

As regards the factual aspects of the matter, it must be stated that the teacher had approached the Civil Court seeking decree of injunction against termination without due which was decreed. The learned Tribunal has recorded findings of fact with respect to otherwise termination. The learned Tribunal has recorded proper findings on factual aspects of the matter after dealing with the material on record. On the aspect of appointment of teacher, the learned Civil Court has also recorded findings in her favour. Perusal of paragraph 6 of the written statement filed by the Management will demonstrate that the fact that the petitioner was looking after the work of Headmistress is admitted, although with a clarification that there was no sanctioned post of Head in the school. It must be stated that the school was granted sanction vide order dated 17.08.2002, w.e.f. June 2000. The learned Tribunal has recorded proper findings with respect to availability of post of Head in the school.

As regards the factual aspects of the case, the contention of Mr. Godbole is that the Teacher has failed to establish the case of oral termination and findings recorded by the learned Tribunal with respect to otherwise termination are contrary to record and perverse. In this regard, it will be appropriate to refer to the written statement filed by the Management, wherein it is admitted that initially the Teacher was working as Headmistress in the school. This statement is, however, qualified by a statement that there was no post of Headmistress in the school. It is stated that the Teacher had voluntarily abandoned service since 18.06.2009. The allegations of otherwise termination are denied in the written statement. It is also stated that, in the appeal, the Teacher had come up with a case of oral termination in the year 2010 and she has also stated that she has continued to work in the school till the year 2012. In this backdrop, a contention is raised that the Teacher herself is not sure about the date of otherwise termination.

The Teacher had initially instituted a suit being Regular Civil Suit No.346 of 2010. In the said suit, the learned Civil Court has recorded a finding that the Management had not allowed the Teacher to sign the muster-roll, since the Teacher had not issued any explanation to letter dated 01.02.2010 issued by the Management regarding unauthorized absence. The fact that Management had issued letter to the Teacher regarding unauthorized absence will indicate that the Teacher was a regular employee and was not merely rendering service only for the purpose of acquiring experience, as is contended by the Management she was dealt with by the Management as a regular employee. Otherwise there is not need to issue show-cause calling for explanation for unauthorized absence. The fact that the Management did not allow the Teacher to sign muster-roll is admitted, as is apparent from the findings recorded by the learned Civil Court. The finding that the Teacher was restrained from signing the muster-roll is based on admission of the Management that the Teache was not allowed to sign muster-roll since she had not replied to notice dated 01.02.2010. The learned Civil Court has also referred to the exhibited documents in the civil suit, which indicate that the Teacher was in service even after 18.01.2010, i.e., the date on which she was restrained from signing the muster-roll. It is on this basis that a decree of perpetual injunction restraining the Management from preventing the Teacher from performing her duties as Head or Teacher in the school came to be passed. The Teacher has treated 18.01.2010 as the date of otherwise termination, since she was initially restrained from signing the muster-roll on the said date. The pleadings in paragraph 15 of the memorandum of appeal, that the Teacher had continued to render service in the school till commencement of summer vacations in the year 2012 and was restrained from working on commencement of the school in June 2012, needs to be viewed in the backdrop of the fact that, admittedly, since 18.01.2010, she was not allowed to sign the muster-roll from the said date. There does not appear to be any contradiction in the pleadings and prayer of the Teacher, as contended.

With respect to factual aspects of the matter, the learned Civil Court has recorded a finding of fact by granting opportunity to both sides to lead evidence. The learned Tribunal has also referred to the relevant facts while dealing with the rival contentions. It must be placed on record that the major thrust on arguments of the learned advocate for the management was on the legality of appointment rather than the factual aspects of the case pertaining to appointment of termination. The findings recorded by the learned Tribunal with respect to otherwise termination by preventing the Teacher from signing the muster-roll is rather admitted fact, as can be seen from the judgment delivered by the learned Civil Court. The fact that even after 18.01.2010, the petitioner has worked in the school is also established from documentary evidence in the civil suit.

The principal contention with respect to legality of appointment, on the ground that the Teacher was more than 28 years of age on the date of appointment, is already rejected, since the initial appoint of the Teacher was on the post of Head. The contention that there was no sanctioned post of Head in the year 2000, when the Teacher was appointed in service, is also liable to be rejected in view of order dated 17.08.2002, which clearly records that permission to start school is granted w.e.f. June, 2000.

The factual aspects of the findings recorded by the learned Tribunal, this Court finds no perversity or other reason to interfere with the same.

As regards the relief of back wages, the learned Tribunal has refused to grant relief of back wages from the date of termination till the date of filing of appeal. However, full back wages are awarded to be paid from the date of filing of appeal, i.e., 05.03.2013. Perusal of memorandum of appeal will demonstrate that there is no pleading in the appeal with respect to non-gainful employment or efforts made towards securing alternate employment. It does not appear from the reading of the judgment that a contention was raised before the learned Tribunal that the teacher was not gainfully employed elsewhere. Likewise, in the present petition as well, the teacher has not filed any affidavit stating that she was not gainfully employed elsewhere during the relevant period. She has also not stated that she had made any efforts for securing employment and was not able to secure the same.

The learned Tribunal has allowed the appeal vide judgment and order dated 17.10.2015. Initially, vide order dated 21.02.2017, this Court had granted stay to execution proceedings initiated by the teacher, subject to condition of deposit of amount of Rs.5,00,000/- by the management with this Court on or before 07.04.2017. Perusal of order dated 14.06.2017 will demonstrate that the management had deposited a sum of Rs.1,00,000/- only as against Rs.5,00,000/- This Court had granted liberty to the management to renew the prayer for interim relief after depositing balance amount of Rs.4,00,000/-. The record indicates that further amount of Rs.4,00,000/- was deposited by the management on 08.08.2018. The teacher is not reinstated in service, although her appeal is allowed vide judgment and order dated 17.10.2015. It also appears that the learned advocate representing the teacher had expired, as a consequence of which, fresh notice was required to be issued to the teacher, which was also one of the factors for delay in final adjudication of the petition. The services of the teacher were terminated disregarding the decree for perpetual injunction restraining the management from terminating her services without following due process. It is apparent that the teacher has not discharged her initial burden of proving non-gainful employment and has also not pleaded about efforts at securing alternate employment. In such circumstances, she should not be entitled to claim back wages till the date of adjudication of appeal by the learned Tribunal. However, it must also be borne in mind that the teacher is presently around 55 years of age. Her age was around 42 years at the time of filing of appeal. She had worked as Head and, thereafter, Assistant Teacher in the school till her termination. At the age of 42 years, the possibility of securing alternate employment is reduced. The case is one of otherwise termination. It will be pertinent to state that in a similar situation where the employee was out of employment for a very long period, the Hon’ble Supreme Court, in the case of Allahabad Bank and Others Vs. Avtar Bhushan Bhartiya^{33.(2022) 13 SCC 202}, upheld that order of High Court awarding 50% back wages. In the said case also, the employee had not made any statement about non-gainful employment from the date of termination of services till reinstatement. In the considered opinion of this Court, it will be appropriate to follow the said course in the facts of the present case as well. Having regard to the over all facts and circumstances of the case, in the considered opinion of this Court, awarding 50% back wages to the teacher from 01.11.2015 and onwards will subserve the ends of justice, since the appeal was allowed vide judgment and order dated 17.10.2015.

For the reasons recorded above, writ petition is partly allowed in the following terms:-

The name of respondent no.1 in title clause is mentioned as Shamshad Begum d/o Shaikh Ahmed. Her marital name is Shamshad Begum w/o Shekh Mahemud. The amount deposited by petitioner/management with this Court be remitted in the name of respondent no.1 in her marital name "Shamshad Begum w/o Shekh Mahemud" with accrued interest, if any.