S.S. Nijjar, J.@mdashIn this petition under Article 226 of the Constitution of India, the petitioner has challenged the judgement and order passed
by the Presiding Officer, School Tribunal, Pune Region, Pune in Appeal No. 105 of 1988 dated 20th February, 1989. This appeal had been filed
against the action of the respondents whereby the services of the petitioner were ordered to be terminated by an order dated 13th June, 1988. The
petitioner has also prayed for a writ of mandamus directing the respondents to reinstate the petitioner on the post of Assistant Teacher with full
back wages.
2. Briefly stated the facts leading to the filing of the present petition may be noticed.
3. The petitioner possesses the qualifications of B.Sc. and B.Ed. Therefore, he was eligible to be appointed on the post of Asstt. Teacher. The
petitioner applied for the post of Assistant Teacher in response to an advertisement in a newspaper. He was called for interview and was
appointed as an Assistant Teacher by an order dated 27th June, 1985. This appointment was with effect from 1-7-1985 in a school managed by
respondent No. 2. According to the petitioner, this appointment was against a clear and permanent vacancy. It was, however, mentioned in the
order of appointment that the appointment was purely temporary for a period from 1-7-1985 to 30-4-1986. It is further stated that the words
temporary and the specific period of one year had no meaning whatsoever because the appointment order did not score out the words
leave/deputation vacancy"". In addition to that, the clause of probation for 2 years was also not scored out and therefore in fact this clause of
probation was applicable to the petitioner. Respondent No. 2 again issued an advertisement dated 20th May, 1986 inviting applications for the
post of Asstt. Teacher. This advertisement mentioned a number of posts. A perusal of the advertisement would show that only the post of
Headmaster was shown to be reserved. No other post including the post of Asstt. Teacher was shown to be reserved. The petitioner on the basis
of this advertisement was continued for the year 1986-87. The advertisement in fact categorically states that preference will be given to (i) S.C.
and S.T. candidates, (ii) Kannada and Marathi both language persons (iii) ladies candidates.
4. By an order dated 30th June, 1986 respondent No. 2 continued the services of the petitioner w.e.f. 1st July, 1986. This order of appointment is
identical to the earlier order of appointment dated 27th June, 1985. The petitioner, therefore, resumed his service on 2nd July, 1986. The
petitioner was not asked to make any further application nor was he interviewed. He continued to receive his salary and allowances till 14th June,
1987, though the order of appointment dated 30th June, 1986 mentioned the appointment of the petitioner for one year. On re-opening of the
school in July, 1987 the petitioner went to the school. However, he was not allowed to join his duties and sign the muster roll on and from the re-
opening day of the year 1987-88. The petitioner was directed to submit a fresh application, which he accordingly did on 23rd June, 1987. In
pursuance of this, the petitioner was issued an order dated 29th July, 1987. This order is identical to the earlier two orders. However, the
petitioner was asked to resume his duties in one of the other schools managed by the respondent No. 2. The petitioner states that during his three
years of service in the two schools of the respondent No. 2, his work was satisfactory and no complaint whatsoever was ever made against his
teaching ability or his behaviour as a teacher.
5. On 13th June, 1988 the petitioner went to resume his duty in the respondent No. 3 school on the re-opening of the said school for the academic
year 1988-89. However, he was surprised when the Headmaster handed him a letter dated 13th June, 1988 expressing his inability to continue the
petitioner in services of respondent No. 2 institution. The head of the school had thus terminated the services of the petitioner. The services of the
petitioner are governed by the provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and the
Rules made thereunder. According to the petitioner, the services of employees of the private schools can be terminated u/s 5(3) of the Act and
under Rule 28 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (""the Rules"" for short). The three provisions
have been reproduced in the petition which are as under:
Section 5(3).
If in the opinion of the management, the work or behaviour of any probationer, during the period of probation, is not satisfactory, the Management
may terminate his services at any time during the said period after giving him one month''s notice.
Rule 28(1).
The services of temporary employee other than on probation may be terminated by the Management at any time without assigning any reason after
giving one calender month''s notice or by paying one month''s salary (Pay and allowances), if any in lieu of notice.
Rule 38.
Power to terminate services, etc. The management shall not delegate to any subordinate authority other than the Chief Executive Officer, power to
execute the decision of the Inquiry Committee in respect of reduction in rank or termination of service.
According to the petitioner, these provisions make it abundantly clear that the services of the petitioner can be terminated only by the management
and not by the Headmaster. There is no provision of delegation to anybody in this respect. The petitioner further submits that the appointment of
the petitioner was on a clear and permanent vacancy. He was appointed as a probationer. It was in view of the fact that he was appointed as a
Probationer that the proposal was required to be submitted by the Institution for the purpose of approval of the Education Officer of the Zilla
Parishad of the District. Thus a proposal for approval of his appointment was sent by the school to the Education Officer. The appointment of the
petitioner was approved by the Education Officer, Zilla Parishad, Sangli i.e. respondent No. 4 by his letter dated 13-4-1988. In view of section
114 of the Evidence Act it is pleaded by the petitioner that the approval of the Education Officer raises a presumption that he was appointed on
probation. He further states that a Full Bench of the Bombay High Court reported in 50 Bom.L.R. 728, has held that where Government officers
exercise discretion vested in them, they do so in their official capacity and a presumption u/s 114 of the Indian Evidence Act, 1872 arises that the
official acts are regularly performed. Thus approval once having been granted could not be termed to have been erroneous or illegal. Immediately
after the illegal termination, the petitioner had approached the respondent No. 4, who directed the petitioner to approach the School Tribunal as
that was the appropriate remedy available to the petitioner. The petitioner accordingly approached the School Tribunal u/s 9 of the Act by filing an
appeal before the Presiding Officer, School Tribunal.
6. Before the Tribunal, the petitioner reiterated that his appointment was on a clear and permanent vacancy from the year 1985-86. He was on
probation for a period of 2 years and, therefore, he is deemed to be a permanent employee of respondent No. 2. He makes an allegation against
the President of the respondent No. 2 in that he was demanding payment of Rs. 5000/- by way of donation before issuing the order of
appointment. The petitioner has made the said donation. The petitioner took the further ground that the respondents have violated the law and also
principles of natural justice. The respondents have terminated the services of the petitioner for extraneous considerations and the termination is not
based on genuine grounds. The petitioner being a confirmed employee, his services could not be terminated except by way of punishment. The
respondents have terminated the services of the petitioner only with an intention to exploit the situation for extracting more amount of donation from
the new candidates who would be appointed on the post. The respondent No. 2 has no legal authority to terminate the services of the petitioner, in
the manner the order of termination was passed.
7. The respondents filed a written statement on the basis of which the Tribunal framed certain points for determination. Point No. 1 is whether the
post of Asstt. Teacher held by the petitioner was reserved or unreserved. The Tribunal has given a finding that the post was reserved for S.C. or
S.T. or D.T.N.T. Point No. 2 was whether the appellant was temporary on an year to year basis or was on probation for a period of two years.
This point has been answered to the effect that his appointment was temporary on an year to year basis. The Tribunal has further come to the
conclusion that the respondents are not a minority institution. The policy of reservation is applicable to the schools being run by the respondents.
8. The Tribunal further held that the management did not maintain a roster in the prescribed form. Thus no extract of the roster has been produced.
He further observed that the management has produced two seniority lists of the teaching staff in its aided schools for the year 1985-86 and that of
the teachers in its unaided schools for that year. He observed that to determine whether a particular vacancy is reserved or unreserved reference
has to be made to the Model Roster which is to be maintained in accordance with Instruction No. 2 of Government Circular dated 24th October,
1979. He further observed that the reserved vacancies carried forward from the previous 5 years should be added to the following year and
adjusted against the open vacancies of the current year. From the seniority list of teachers produced, the Tribunal comes to the conclusion that
according to the roster 36 members of the respondent No. 2 institution should belong to the reserved categories. This should include 8 S.C., 3
S.T., 2 DTNT and 4 O.B.C. members, It is observed that in fact the said teaching staff included only 3 members of the Scheduled Caste, one
Scheduled Tribe and 22 other Backward Class members. Thus it is concluded that at the time of the petitioner''s appointment there was a backlog
of 5 Scheduled Caste, 3 Scheduled Tribe and 1 VJNT/DTNT members in the teaching staff. From the seniority list of 1985-65 he also concludes
that there were six new appointments of teachers including the petitioner. These six teachers were appointed on 1-7-85, 16-6-85, 4-2-85 1-7-85
(petitioner), 5-8-85 and 4-9-85. He further observed that even for purposes of reservation and carry forward rules, the appointments cannot
exceed 50 per cent in any year. Thus it was open to the management to treat 3 posts of Asstt. Teacher filled during 1985-86 as 6 unreserved and
the remaining 3 posts filled in that year as reserved. The remaining three had to be filled on the basis of reservation. The petitioner belonging to the
O.B.C. has to be treated as having been appointed against a reserved vacancy. Thus, according to Rule 9(g) (a) he could only be given a
temporary appointment. The petitioner, it is concluded, stands on the same footing as an open category candidate. Thus the question of being
appointed on probation does not arise. The approval granted by respondent No. 4 is termed as erroneous.
9. Mr. Pitre, learned Counsel for the petitioner, submits that the findings of the Tribunal on the aforesaid issue are perverse on both the counts. He
submits that the post against which the petitioner was appointed could not be treated as a reserved post nor could he be treated to have been
appointed only on a temporary basis. On the first point he says that he applied in response to an advertisement which has been attached with the
writ petition. A perusal of the advertisement would show that the post has not been shown to be reserved. Rather the advertisement merely says
that preference will be given to candidates belonging to S.C., S.T. Kanada speaking candidates and lady candidates. He further points out that
wherever reservation was provided it was specifically mentioned in the advertisement that the post is reserved. Thus, in the advertisement at serial
No. 1 post of Headmaster which has been advertised has been shown as reserved. Moreover, it is emphasised by the Counsel for the petitioner
that the order of appointment issued to the petitioner clearly indicates that he has been appointed against a clear permanent vacant post. The order
of appointment states that he is appointed on probation for a period of 2 years. If this recital was to be found only in one of the appointment orders
may be it could be said that it was by mistake that the word ""on probation"" had not been deleted. But all the three appointment orders issued to the
petitioner are identical and in all three the petitioner has been shown to be on probation . He further submits that approval of the Education Officer
under the rules is required only if a person is appointed against a permanent vacant post. There is no need to get the approval of the Education
Officer if a person is appointed on a temporary basis. Had the petitioner been appointed only on account of the fact that candidates belonging to
reserved categories are not available then there is no question of sending a proposal to respondent No. 4 to accord approval to the appointment of
the petitioner. He further submits that not only was the proposal for approval sent to respondent No. 4 but it was actually granted on 13th April,
1988. These are the factual aspects on which the petitioner relies to show that he was appointed against a clear permanent post and further to
show that by virtue of operation of law he had become a confirmed employee of respondent No. 2. The petitioner further relies on a Division
Bench decision of this Court in the case of Anjarla Shikshan Sanstha v. Smt. Kumudini D. Kulkarni, W.P. No. 4623/85 delivered on 30-3-1988
by Pendse and Sugla,JJ., wherein it has been clearly held that it is necessary for the institution to produce the relevant record and prove that there
was a vacancy for the reserved candidate or there was a backlog in respect of the vacancy. The facts of the case decided by the Division Bench
are almost identical to the facts of the present case. The Division Bench has held :
Mrs. Belose, learned Counsel appearing on behalf of the institution, reiterated the submissions urged before the Tribunal. The learned Counsel
urged that the appointment of the teacher was against reserved category and the appointment was made because the backward class candidate
was not available during the relevant three academic years. Reliance was placed on Rule 8(9) (a) to contend that the institution is entitled to fill the
post temporarily on year to year basis when the candidate belonging to backward class is not available. It was submitted that the appointment of
teacher being in that capacity, the question of the teacher being appointed on permanent basis does not arise. It is not possible to accede to the
submission of the learned Counsel for more than one reason. In the first instance, as observed by the Tribunal, the institution did not bother to
produce the relevant record to establish that the appointment of the teacher was against reserved category. It was essential for the institution to
produce the relevant record and establish that in accordance with the roster, the post was reserved for backward class candidate. In addition to
that, it was necessary to establish how the appointments were made subsequent to academic year 1982-83. The institution pointed out to the
Tribunal that Mr. Mondkar who was a permanent teacher had resigned and in his place Mr. Kaldhone was appointed even though respondent No.
1 was immediately next to Mr. Mondkar in seniority. Apart from Kaldhone, Mr. Kumbhar was also appointed subsequently. It is not open for the
management to merely claim that the appointment was made against reserved vacancy. Such a bald claim will not be accepted by any Tribunal. It
is necessary for the institution to produce the relevant record and prove that there was a vacancy for the reserved candidate or there was a back-
log in respect of the vacancy. The Tribunal would then be required to enquire as to whether any teacher was subsequently appointed and retained
while removing respondent No.1 from the employment. The Tribunal noted that the institution did not care to produce any record and, therefore,
the contention that the appointment was against the reserved category could not be accepted. We are unable to find any infirmity in this
conclusion.
Moreover, learned Counsel has also referred to a circular wherein detailed procedure has been prescribed as to maintenance of roster. If the
roster is not maintained in that particular manner it would not be possible to know precisely which post is reserved and which is not reserved. In
fact, a Full Bench of this Court in the case of Gopalkrishna Ramchandra Chavan and ors. v. State of Maharashtra and ors, reported as AIR 1987
Bom 123 has in paragraph 26 observed that :
the logical corollary of reservation of posts is roster and the logical corollary to the roster is the carry forward rule for a particular number of
years.
It is submitted by Mr. Pitre that in view of the non-production of the roster, the Tribunal could not have come to the conclusion, purely on the basis
of the seniority lists, that the post against which the petitioner had been appointed was reserved for the Backward Class Candidates. We find merit
in the submission of the Counsel for the petitioner. If the post had been reserved it would have been indicated in the advertisement that it is so
reserved. If the petitioner had been appointed against the reserved post it would have been mentioned in the order of appointment that he has been
appointed on a reserved post. If the petitioner had been appointed against a reserved post he would have been appointed for a temporary period
of one year. This again would have been mentioned in the order of appointment. If the post had been a reserved post then there is no question of
sending the proposal for approval to respondent No. 4 for his appointment. If the post had been a reserved post then the respondents would have
produced a roster which has been maintained in accordance with the Rules. No such roster has been produced either before the Tribunal or before
this Court. Not only this, the respondents have not even cared to put in an affidavit in reply to controvert the factual averments which have been
made in the petition. No Counsel has put in an appearance on behalf of respondent Nos. 2 and 3. It has been settled by a Division Bench of this
Court that it is for the management to give cogent proof of the fact that the post is reserved. The Tribunal lost sight of all these facts and gave a
finding purely on the basis of the seniority list that the post is reserved and the petitioner had been appointed on a temporary basis. We are inclined
to accept the submissions made by the Counsel for the petitioner and hold that the finding of the Tribunal on the first point are perverse. We hold
that the petitioner has been appointed against an open category post which was lying vacant and was of a permanent nature. We further hold that
the petitioner had been appointed on probation and after completion of two years of service on probation he is deemed to have been confirmed
under the Rules. Thus his services could not have been terminated except as provided under the Rules. The Counsel for the petitioner further
submits that even otherwise the order of termination is violative of Articles 14 and 16 of the Constitution of India. He submits that there are not less
than 11 persons who have been appointed on the said post after termination of the services of the petitioner. In fact, the Tribunal himself has
noticed in the judgement that two persons who had been appointed after the petitioner are still continuing in the services of respondent No. 2. So
far as 11 persons appointed after the petitioner, they are mentioned in the written arguments presented before the Tribunal. However, as is evident
from a reading of the order of the Tribunal, he has not bothered to read the written arguments as he disposes them off by simply saying that no new
ground or submission has been made. It is settled proposition of law that Article 16(1) forbids discrimination in matters of employment. This
guarantee of equality is not restricted only to the posts which are held in a permanent capacity. Even temporary employees, adhoc employees have
to be treated with an even hand. Articles 14 and 16(1) guarantees that persons similarly situated have to be treated alike. Equals have to be treated
equally. Any classification made within a homogenous group of employees has to be reasonable. There must be rational basis for the said
classification. This view of ours finds support of the Supreme Court in the case of Jarnail Singh and Others Vs. State of Punjab and Others, . In
paragraphs 34 and 35 it is mentioned as follows.
34. Similar observations have been made in the case of The Manager, Government Branch Press and Another Vs. D.B. Belliappa, . It has been
held that the protection of Arts. 14 and 16 of the Constitution will be available even to a temporary Government servant if he has been arbitrarily
discriminated against and singled our for harsh treatment in preference to his juniors similarly circumstanced. In that case the service of Belliappa, a
temporary Class IV employee was terminated without assigning any reason although in accordance with the conditions of his service, three other
employees similarly situated, junior to Belliappa in the said temporary cadre, were retained. The order of termination was held to be bad as it
offended the equality clause in Arts. 14 and 16 of the Constitution.
35, In the instant case, ad hoc, services of the appellants have been arbitrarily terminated as no longer required while the respondents have retained
other Surveyors who are junior to the appellants. Therefore, on this ground also, the impugned order of termination of the services of the appellants
are illegal and bad being in contravention of the fundamental rights guaranteed under Arts. 14 and 16 of the Constitution of India.
As noticed earlier, the petitioner was appointed on 1-7-85, while two others were appointed on 5-8-85 and 4-9-85. These two appointees are
continuing in service, while the services of the petitioner have been terminated. In view of the above, we hold that the petitioner has been
discriminated against and the order of termination has to be quashed on this short ground. One further ground advanced by the learned Counsel for
the petitioner is that the order of termination has been passed on extraneous considerations. He states that the foundation of the order actually is
that the management had somehow come to the conclusion that the petitioner was taking active part in party factions within the management.
Therefore, it was felt necessary to remove him. These facts are noticed by the Tribunal in paragraph 19 of the judgement. It is noticed that the
petitioner had managed to obtain the order of appointment on 13th June, 1987 from Shri Patil, Vice President of the Sanstha. After noticing all the
facts, the Tribunal holds that these facts indicate that the petitioner took active interest in the party factions in the management and that he supports
the party factions led by Shri Patil, Vice President of the Sanstha. It is concluded :
that therefore the management of the Sanstha did not think it desirable to give fresh order of appointment to the appellant during 1988-89. The
validity of the order of termination dated 13th June, 1988 is not adversely affected on account of the said fact and also on account of the
circumstances referred to in paragraph 18 above.
10. In view of the settled proposition of law that no order causing civil consequences can be passed without observing the rules of natural justice,
we have no hesitation in holding that the finding arrived at by the Tribunal is wholly incorrect. Reference in this case again shall be made to the case
of Jarnail Singh (supra) in which it is clearly held by the Supreme Court as under :
The mere form of the order is not sufficient to hold that the order of termination was innocuous and the order of termination of the services of the
probationer or of an ad hoc appointee is a termination simpliciter in accordance with the terms of the appointment without attaching any stigma to
the employee concerned. It is the substance of the order i.e. the attending circumstances as well as the basis of the order that have to be taken into
consideration. In other words, when an allegation is made by the employee assailing the order of termination as one based on misconduct, though
couched in innocuous terms, it is incumbent on the Court to lift the veil and to see the real circumstances as well as the basis and foundation of the
order complained of. In other words, the Court, in such a case, will lift the veil and will see whether the order was made on the ground of
misconduct/inefficiency or not. In the instant case allegations of serious misconduct against the petitioners and also the adverse entries in the service
records of these petitioners were taken into consideration by the Departmental Selection Committee without giving them any opportunity of hearing
and without following the procedure provided in Article 311(2) of the Constitution while considering the fitness and suitability for the purpose of
regularising their services in accordance with the Government Circular made in October, 1980. Thus the impugned orders terminating the services
of the petitioners appellants on the ground that "" the posts are no longer required"" are made by way of punishment.
Following these observations we have examined the case of the petitioner as to whether he has actually been removed rather than terminated. It is
evident that the management was having an impression that the petitioner was indulging in party faction against the President. It is, therefore,
mentioned in the judgement of the Tribunal that because of the party faction in which the petitioner indulged, the management felt that it was not
desirable to give fresh appointment to the petitioner. The services of the petitioner had been terminated on extraneous considerations. Without
complying with rules of natural justice the petitioner has been found guilty of supporting the Vice President in the party faction in the respondent
No. 2 Institution. If such a conclusion was to be drawn against the petitioner then it was necessary to hold an enquiry as provided under the rules.
Once the petitioner had completed two years of service on probation he is deemed to be a confirmed employee. No confirmed employee can be
dismissed, removed or terminated without complying with the procedure as prescribed under the rules. No charge-sheet was issued to the
petitioner. No enquiry was held. Thus the order of termination is clearly not only against the principles of rules of natural justice but is also against
the statutory provisions contained in the Act. In view of the findings recorded above, the petition is allowed.
11. Rule is made absolute in terms of prayer clauses (b) and (c). The respondents are directed to pay the full back wages to the petitioner within a
period of four months. There will be no order as to costs.