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Judgment
Rule. Rule made returnable forthwith and heard finally with consent of parties.
Present petition is filed in order to assail order dated 21.03.2018 passed by learned Presiding Officer, School Tribunal, Aurangabad in Appeal No.06 of 2017, whereby the appeal preferred by present respondent no.1 in order to challenge oral termination dated 24.08.2016 came to be partly allowed by directing reinstatement in service with 50% back wages. The petitioner/management is a public trust under the Maharashtra Public Trusts Act, 1950. It runs a school named as Dyansandeep Primary School, Misarwadi, Aurangabad.
It is the case of respondent no.1 that she was appointed as Assistant Teacher in the said school vide order dated 12.06.2000 on probation for a period of two years and that she has successfully completed the period of probation and was also subsequently promoted as Head of the school. It is her case that in the year 2006, she was sent by the Management for teachers training program. It is the case of respondent no.1 that after putting in around 16 years of service, she was unceremoniously removed from employment by oral termination. The petitioner/management entered appearance in the appeal and opposed the appeal contending that respondent no.1 was never appointed as teacher in the primary school. It is contended that she was appointed as a teacher in the pre-primary school run by petitioner no.1/trust and that she left the services of pre-primary school in the year 2008. It is the case of management that pre-primary school was closed in the year 2008 and since then respondent no.1 is not in its employment. It is further their case that in the year 2008, respondent no.1 took admission for D.Ed course and was not in employment of petitioner/management since then. It is contended that there are eight sanctioned posts of assistant teachers in the school, all of which are occupied by the appointment of duly qualified candidates.
In order to support her contention that she was in employment of petitioner/management, respondent no.1 had produced photocopies of certain muster rolls. Apart from this, she has also produced newspaper cuttings of events and programs held in the school in which her photographs and name had appeared, at times as assistant teacher and at times as head.
The learned School Tribunal, as mentioned above, has allowed the appeal preferred by respondent no.1 by granting relief of reinstatement with 50% back wages. Learned School Tribunal has placed reliance on copies of muster rolls placed on record by the management, the letter issued by Education Officer to the head of school for sending respondent no.1 for training, she being a teacher of Std-I for a period from 22.05.2006 to 02.06.2006, relieving order for attending such training, newspaper cuttings and photographs relating to events held in the school and copy of a register regarding routine instructions issued by the head of the school to teachers with respect to work of school including teaching.
It must also be stated that some third person has made a complaint with Education Officer regarding injustice being meted out to respondent no.1. Pursuant to the said complaint, inspection of the school was conducted by Extension Officer (Education), Panchayat Samiti, Aurangabad. The respondent no.1 was present at the time of inspection. It is stated in the report that although respondent no.1 was present in the school, her name and signature did not appear in the attendance register. It is also recorded in the inspection report that respondent no.1 stated that she was in employment from 05.06.2000. However, relevant attendance register and other documents were not produced by the management. The learned School Tribunal has drawn adverse inference against the management for not producing the muster roll on record to counter documentary evidence produced on record by respondent no.1 in relation to her employment.
The contention of Mr. Joshi is that the appeal at the behest of respondent no.1 was not maintainable, since she was an employee of pre-primary school, which does not fall within purview of MEPS Act which deals with service conditions of employees of Primary, Secondary School and Junior College of Education. Mr. Joshi, learned advocate appearing for petitioner/management vehemently argues that admittedly respondent no.1 was not holding requisite qualification for appointment on the post of assistant teacher as on 05.06.2000 i.e. date of her alleged appointment as assistant teacher in the school. Mr. Joshi vehemently argues that admittedly respondent no.1 has acquired qualification of D.Ed. in the year 2015 and as such, she cannot claim to be a regularly selected assistant teacher, as is contended by her. The learned advocate also draws attention to Rule 9 (4) to contend that the upper age limit for appointment on the post of assistant teacher in a primary school is 28 years and admittedly age of respondent no.1 as on the date of her alleged appointment was more than 28 years. Learned advocate also contends that age relaxation is permissible only with prior sanction of Deputy Director, which is not obtained in the present case. Mr. Joshi, therefore, contends that even if all the contentions raised by respondent no.1 are accepted as true and correct, it needs to be held that her appointment was not legal and valid and consequently she can not claim right to the post. Learned advocate also draws attention to the memorandum of appeal to contend that according to respondent no.1, she was appointed on the post of assistant teacher, whereas, the findings of learned Tribunal that her initial appointment was as untrained teacher. With respect to copies of muster rolls produced on record, the contention of Mr. Joshi that respondent no.1 is a close relative of President of Management and, therefore, she had access to the residential house, school premises and the said documents have been tampered by her since she had access to the records. Learned advocate states that although admittedly respondent no.1 has acquired qualification of D.Ed. in the year 2015, in the muster rolls prior to the said period, her qualification is recorded as H.S.C. D.Ed. He further states that in some of the documents, date or relevant month and year of the muster is also not seen. Learned advocate, therefore, contends that the fact of employment of respondent no.5 is also not proved. Learned advocate sums up the argument stating that respondent no.1 was not entitled to any relief, either in the facts of the case or by law and the appeal should have been dismissed as such.
Mr. P. R. Katneshwarkar, learned senior advocate for respondent no.1 supports the findings recorded by learned School Tribunal and also the relief granted by it. In his submission, the management cannot derive advantage of its own wrong to contend that appointment of respondent no.1 is not legal and appeal should be dismissed on this ground. Mr. Katneshwarkar vehemently argues that the contention that the photocopies of muster produced on record are false documents cannot be entertained, since the management which is custodian of the record did not produce the original muster roll for the relevant period. He contends that adverse inference is required to be drawn against the management for not producing muster roll on record to counter the contention of respondent no.1 with respect to her employment, particularly when the material in the form of muster rolls, photographs and newspaper cuttings of employment of respondent no.1 with petitioner/management was produced on record. Mr. Katneshwarkar draws attention to the caste validity certificate of respondent no.1 which establishes that respondent no.1 belongs to Scheduled Caste category. Learned senior advocate draws attention to Rule 9 (4) and contends that in view of the aforesaid, the upper age limit to the appointment will be 33 years and not 28 years, as is contended by learned advocate for the petitioner/management. As regards the initial qualification, the contention is that respondent no.1 could have been appointed as an untrained teacher and, therefore, her initial appointment cannot be stated to be illegal for want of requisite qualification as on the date of appointment.
Having heard rival submissions, one thing is clear that as on the date of her alleged initial appointment in the year 2000, respondent no.1 was not holding qualification of HSC D.Ed., which was the requisite qualification for appointment on the post of assistant teacher in a primary school at the relevant time. This Court in catena of decisions relating to appointments under the M.E.P.S. Act has held that in cases where an employee is not holding requisite qualification on the date of initial appointment, said appointment is not legal and valid, and as such, no right to the post is created in favour of such employee on the post on which he/she is appointed. In view of aforesaid, it cannot be held that the alleged appointment of respondent no.1 in the year 2000 is legal and valid appointment and as such respondent no.1 will not have any right to the post. Apart from this, there is no material on record to indicate that the appeal was made in accordance with Section 5 of M.E.P.S. Act. There is no material on record to infer that appointment was made after issuing advertisement, taking interviews etc. Even if the contention of Mr. Katneshwarkar that after a period of around 16 years respondent no.1/employee could not be expected to produce material on record to establish the procedure that was followed while making her appointment is accepted, the fact that she was not holding requisite qualification on the date of appointment cannot be disputed.
In that view of the matter, in the considered opinion of this Court, learned School Tribunal has erred in granting relief of reinstatement to respondent no.1. Since respondent no.1 is not entitled to relief of reinstatement in services, the question of payment of back wages will also not arise.
However, that by itself is not an end of the matter. Apart from granting relief of reinstatement and back wages, the School Tribunal is also empowered to grant appropriate relief in a fit case.
It is the case of respondent no.1 that she has rendered services with the petitioner/management for years together. As against this, it is the case of petitioner/management that she had worked as a teacher in pre-primary school, till the year 2008 and thereafter she was not in employment. In order to substantiate her case of employment, respondent no.1/teacher has filed muster rolls on record for a period from 2011 to 2015. Respondent no.1 has also produced some newspaper cuttings and photographs to establish her presence and participation in the events and functions held in the school. It must also be stated that the Education Officer had issued letter to the management for sending respondent no.1 for training treating her to be primary teacher imparting education to Std-I students and management has also granted no objection for attending said program. Although Mr. Joshi has pointed out circumstances to disbelieve the muster rolls, it needs to be stated that these muster rolls bear signatures not only of respondent no.1 but other employees as well. The contention is that respondent no.1 having access to the record of school has tampered the said document and produced the same before the learned Tribunal. However in the considered opinion of this Court, learned Tribunal has rightly drawn adverse inference against the petitioner for not producing the original muster rolls for the relevant period in order to establish its contention. It was very easy for the petitioner/management to falsify the case of respondent no.1, which was based on the said documents. The management could have produced original muster rolls to establish that respondent no.1 was not in employment. Even if it is assumed that original document itself was manipulated by respondent no.1, the manipulation could have been proved by taking steps after producing original. However, the management has not filed original documents on record. This in the considered opinion of this Court will be sufficient to draw adverse inference against the petitioner/management, as has been rightly done by learned tribunal. It must also be stated that, apart from the muster entries, newspaper cuttings and photographs regarding attendance of respondent no.1 of the events and programs of the school are also placed on record. In view of the aforesaid findings by learned Tribunal that respondent no.1 was working with the management needs to be upheld.
As regards contention of Mr. Joshi with respect to maintainability of appeal, in view of evidence on record which indicates that respondent no.1 was working with primary school, although without appointment order, preliminary objection with respect to maintainability of appeal on the ground that respondent no.1 was an employee of pre-primary school is liable to be rejected.
On a specific query made by this Court to the petitioner/management regarding wages paid by the management to respondent no.1, it was stated that honorarium was paid to respondent no.1 till 2008, when she was employed with pre-primary school and since 2008, respondent no.1/teacher is not in employment and therefore there is no question of making payment for wages or honorarium to her thereafter. The musters produced on record show employment of respondent no.1 with the school at least from 2011 till 2015. Admittedly, for this period the management has not paid any wages to respondent no.1. In the peculiar facts of the present case, where working is extracted from respondent no.1 without making payment of any salary, in the considered opinion of this Court, it will be appropriate to direct the petitioner to pay the salary to respondent no.1/employee for a period of three years preceding the date of filing of appeal. It is clarified that the salary shall be paid for a three years prior to the date of filing of appeal and not registration of appeal. Salary shall be paid in the prescribed pay scale for untrained teacher till the date of acquisition of D.Ed. qualification and as a trained teacher from 17.01.2015 till date of oral termination i.e. 24.08.2016. This salary shall be paid in accordance with recommendations of the Pay Commission then in force. However, the salary shall be paid as prescribed for entry level without increments. This, in the considered opinion of this Court, it will subserve the ends of justice. Such a relief can be granted to respondent no.1/teacher in view of enabling provision of Section 11(2)(f) of the MEPS Act.
Writ Petition is thus partly allowed by quashing and setting aside judgment and order dated 21.03.2018 passed by learned Presiding Officer, School Tribunal Aurangabad in Appeal No.06 of 2017 by directing the petitioner/management to pay salary to the respondent no.1 for a period preceding three years prior to the date of filing of appeal in the prescribed pay scale for an untrained primary school teacher till 16.01.2015 and salary for trained teacher from 17.01.2015 till 24.08.2016 i.e. date of oral termination.
In the circumstances, parties shall bear their own costs.
At this stage, Mr. Joshi, learned advocate for the petitioner files an application with a prayer for issuance of certificate of appeal under Article 134A of the Constitution of India. He contends that the certificate should be granted since the case involved substantial questions of law of general importance as contemplated under Article 133(1).
I am afraid the legal principles that are canvassed in the present petition are settled by catena of decisions of this Court. In principle that in the absence of requisite qualification, the employee has no right to the post is accepted by this Court. This Court has moulded the relief invoking enabling provisions of MEPS Act to grant solace to respondent no.1, who has rendered services without being paid any salary. The request for grant of certificate is therefore rejected as proposed appeal does not give rise to any substantial question of law of general importance.
At this stage, Mr. Joshi makes a further request to grant stay to the execution and implementation of the present order for a reasonable period in order to enable the petitioner to approach the Hon'ble Supreme Court. Considering the request made, it is directed that present judgment and order shall become operative from 15.10.2026.
Rule is made partly absolute in above terms.