S.M.I. Aseer Education Foundation vs The State Of Maharashtra & Ors.

(Per - Jitendra Jain, J.)

Rule. Rule made returnable forthwith. With the consent of learned counsel for the parties, taken up for final hearing.

This petition filed by the petitioner-Institution challenges judgment and order dated 13 September 2021 passed by the School Tribunal, Solapur in Appeal No.5 of 2018, whereby the order of termination of services of respondent no.4 with effect from 1 August 2015 is quashed and set aside and the petitioner-Institution is directed to reinstate respondent no.4 as Shikshan Sevak with continuity of service and 50% back-wages.

The petitioner is a minority institution registered under the Maharashtra Public Trusts Act, 1950 and is also governed by the provisions of the Societies Registration Act, 1860. The petitioner imparts education to students belonging to the minority community in rural as well as urban areas. The school under consideration is Ideal Urdu Primary School, situated at Ahmednagar.

Before the Tribunal, respondent no.4 contended that pursuant to an advertisement dated 15 August 2013 an interview was held on 20 August 2013 and she came to be appointed as Shikshan Sevak by the petitioner – Institute. On 7 August 2014, respondent no.4 proceeded on leave and re-joined on 1 August 2015. According to respondent no.4 she was not permitted to join on 1 August 2015 and her services were orally terminated. Respondent no.4 challenged the said oral termination by filing an appeal before the Tribunal. The petitioner-Institution denied the pleadings filed by respondent no.4 before the School Tribunal. It is the case of the petitioner that respondent no.4 has fabricated all the documents showing her employment and on the basis of which the Tribunal has allowed the appeal of respondent no.4. It is the case of the petitioner that respondent no.4 was never recruited as a teacher and that the father of respondent no.4, who had been working in the Education Department, fabricated all the documents to show that respondent no.4 is recruited by the petitioner.

The School Tribunal after hearing the parties, allowed the appeal partly by holding that the petitioner has not discharged the onus of proving that respondent no.4 was not appointed. The Tribunal further observed that the petitioner has not disputed the appointment order and that no contrary record is produced by the petitioner to show that respondent no.4 was not appointed in the school. The Tribunal further observed that respondent no.4 was duly appointed on a clear and permanent vacant post and is, therefore, entitled to get protection under Section 5 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (MEPS Act). The Tribunal further observed that the leave application was made by respondent no.4 to the Headmaster and a copy was forwarded to the Education Officer. Therefore, the Tribunal declared oral termination of respondent no.4 as illegal and directed the petitioner to pay 50% back-wages with continuity of service with effect from 1 August 2015.

We have heard learned counsel for the petitioner-Institution and learned counsel for all the respondents.

Prior to the academic year 2013-14, there were eight sanctioned posts in the school run by the petitioner. Out of the said eight posts, approval was granted for six posts. In the year 2013-14, one post was reduced, resulting into seven total posts. According to the petitioner, on 16 January 2012, Ms. Hina Kausar Inayat Shaikh was appointed to the said seventh post.

Rule 9 of the MEPS Rules, 1981 provides for appointment of staff. Rule 9(2A) provides for advertisement of vacancies for teaching posts including details of subjects in atleast one local newspaper having wide circulation in the region and notify the vacancies to the Employment Exchange Center. Rule 9(2B) prescribes that the advertisement shall be kept open for atleast 15 days before filling the concerned post. In the instant case, as per the submission of respondent no.4, she was appointed pursuant an advertisement dated 15 August 2013 published in the newspaper “Dainik Jhunj”. In our view, the said newspaper “Dainik Jhunj” has not been shown to have had wide circulation in Ahmednagar. Furthermore, according to respondent no.4, as per the said advertisement, the interview was scheduled on 20 August 2013 and she came to be appointed on 21 August 2013. In our view, the period of 15 days prescribed under Rule 9(2B) between date of advertisement and filling up the post has not been complied with. Therefore, we find force in the submission made by learned counsel for the petitioner that the advertisement dated 15 August 2013 is fabricated. In any case, even if the said advertisement is considered to be genuine, since the period of 15 days provided under Rule 9(2B) has not elapsed, the alleged appointment made is contrary to Rule 9(2B) of the MEPS Rules.

According to respondent no.4, she cleared the D.Ed. examination on 20 August 2013. The advertisement in “Dainik Jhunj” is dated 15 August 2013. Therefore, on the date when the advertisement was published, respondent no.4 did not possess the prescribed qualification and, therefore, even on this count, the appointment of respondent no.4 cannot be said to be in accordance with the provisions of the MEPS Act and Rules. It is settled position that the requisite qualification has to be possessed on the date when the advertisement is published and not afterwards. Therefore, even on this count, the appointment of respondent no.4 cannot be said to be in accordance with law.

Respondent no. 4 has filed two orders of appointment both dated 21 August 2013 in support of her submission that she was duly appointed. We have perused the appointment letters relied upon by respondent no.4. One appointment letter is in English and another in Marathi both of the same date. The appointment order in English is signed by the Secretary. Similarly, the appointment order in Marathi is signed by the Secretary with a seal of the petitioner. As per Rule 9(2) of MEPS Rules, appointment of teaching staff shall be made by the School Committee as per Schedule-A. The School Committee consists of four representatives consisting of the management, one member from amongst the permanent teacher and one member from amongst the non-teaching staff. The Head of the School would be the ex-officio Secretary of the School Committee. In the instant case, the appointment orders are issued by the Secretary and not by the School Committee. Both the appointment orders are in different languages. We fail to understand as to why, on the same day, respondent no. 4 obtained two different appointment orders signed by an unauthorised person. Therefore, in view of the alleged discrepancies, the submission made by learned counsel for the petitioner-Institution that the said appointment orders are fabricated is required to be accepted. The petitioner has denied issuing the appointment order. The finding of the Tribunal that the petitioner has failed to discharge its onus, is erroneous. It is settled position that a person cannot be called upon to prove negative. The onus was on respondent no. 4 which she has failed to prove as observed by us above.

According to respondent no. 4, leave application dated 1 July 2015 was submitted to the Education Officer seeking leave for the period from 7 August 2014 to 31 July 2015. First of all, the genuineness of this leave application is in grave doubt as there is no inward or outward register number mentioned on the said letter by the office of the Education Officer. Secondly, the application is made after the alleged leave of almost one year had expired. Generally, the leave application is submitted prior to the person going on leave and not after the expiry of one year of leave when a person seeks to rejoin. The findings of the School Tribunal that the leave application was filed with the Headmaster and a copy was given to the Education Officer are perverse and contrary to the material on record. The application annexed to the petition clearly shows that it is addressed to the Education Officer and not to the Headmaster. Respondent no. 4 has not produced any document to show leave application was submitted to the Headmaster. Furthermore, the said letter does not state that a copy of the same was given to the management, the school or the Headmaster. Therefore, the finding of the Tribunal on this count is contrary to the material on record. As per Rule 16 of the MEPS Rules, leave has to be granted with the permission of the School Committee. Rule 16 provides that an application for leave should be made before the date from which the leave is sought and only in exceptional cases which are circumstances beyond the control of the employee that the application can be made within seven days from the date of absence. In the instant case, the alleged leave application is not addressed to the School Committee or to the Headmaster nor it is made prior to the date on which respondent no.4 sought to go on leave nor within seven days of going on leave. Therefore, the findings of the Tribunal and the submission of respondent no.4 on the issue of leave cannot be accepted.

The petitioner has filed the seniority lists for the period 2012-13 to 2020-21 as per Schedule F read with Rule 12 of MEPS Rules. Name of respondent no.4 does not appear on the list. The columns of these forms are in English and the forms are signed by the Headmaster. The seniority list relied upon by respondent no.4 is totally different. In the said document at pages 97 and 98 name of respondent no. 4 appears on the back side of the seniority list at page 98 and not on page 97, where the seniority of other staff members is mentioned, though there is sufficient place to write the name of respondent no. 4. Furthermore, the columns are in Marathi and not in English. The said seniority list relied upon by the respondent no.4 is signed by the Secretary. We fail to understand as to why the seniority list filed by respondent no.4 does not contain her name at page 97 i.e. on the front side, though there is sufficient space available. Therefore, even this document relied upon by respondent no.4 in support of her submission cannot be accepted.

We have verified signature of the secretary of the petitioner signed on the written statement filed before the Tribunal and the signature appearing on the seniority list relied upon by respondent no.4. There is a mark difference between the two. Therefore, the seniority list relied upon by respondent no.4 appears to be a fabricated document.

There is force in the submission made by the learned counsel for the petitioner that the Institute was unaided and, therefore, the appointment of respondent no.4 cannot be as a “Shikshan Sevak”, whereas respondent no.4 in her appeal memo herself has admitted that she was appointed on as Shikshan Sevak on 21 August 2013. In case of unaided Institute the appointment has to be as an “Assistant Teacher” and not as Shikshan Sevak. Therefore, even on this count, the appointment of respondent no.4 by relying upon various documents does not appear to be genuine.

From the various dates mentioned above, it appears that respondent no.4 to avoid complying with the requirement of clearing Teachers’ Eligibility Test (TET) exam, which was introduced from 23 August 2013 has relied upon all the documents dated prior to 23 August 2013. This also casts a grave doubt in addition to the various reasons stated above on the discrepancies with regard to appointment of respondent no.4 by the petitioner.

Respondent no. 4 has not produced any document to show that she received salary from the date of her appointment. This also indicates that she was not employed by the petitioner – Institute and has failed to prove her employment.

The submission of respondent no. 4 that there is difference between appointment and approval and though Education Officer may not have approved her appointment, her appointment cannot be said to be invalid, is not acceptable. In our view, we have already observed that respondent no. 4 has failed to discharge her onus of being appointed by the petitioner – Institute and, therefore, this submission is rejected.

The submission of respondent no. 4 regarding the finding of the Tribunal based on muster roll cannot be accepted, since the muster document has not been produced by respondent no. 4 before us. Therefore, we fail to understand how the Tribunal gave such a finding.

The finding of the Tribunal that the petitioner – Institute has not disputed appointment of respondent no. 4 is perverse since in the written statement filed by the petitioner, they have explicitly denied that respondent no. 4 was appointed by them.

The finding of the Tribunal in paragraphs no. 21, 23 and 24 that the petitioners did not issue the notice before preventing respondent no. 4 to sign muster roll and from discharging her duty and further the petitioner did not follow the procedure in terms of Section 5 and section 4(6) of the MEPS Act before preventing respondent no. 4 from signing muster roll, is perverse and contrary to the material on record. As observed by us above, the material on the basis of which respondent no. 4 claims to be appointed has been found by this Court to be fabricated and there being no appointment at all, question of giving notice before preventing respondent no. 4 from discharging her duty does not arise.

The counsel for respondent no. 2 – Education Officer is justified in relying upon the recent decision of Principal Bench of this Court in the case of Smt. Manthana Ramdas Thakur and another Vs. The State of Maharashtra through the Secretary, School Education Department and another^{11.Writ Petition No. 112 of 2025 dated 21.10.2026}, wherein it is held that appointments contrary to Rule 9 of MEPS Rules are illegal.

For all the above reasons, Writ Petition is allowed in terms of prayer clause (A) which reads as under :-

Rule is made absolute accordingly.