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2011 DIGILAW 173 (BOM)

Manohar Mahadeo Bhajikhaye v. Presiding Officer

2011-02-11

VASANTI A.NAIK

body2011
Judgment :- RULE. Rule made returnable forthwith. The petition is heard finally at the stage of admission as the notice of final disposal was issued by an order dated 24.11.2010 and the respondents are duly served with the notice. 2. The petitioner was admittedly working as a peon with the respondent no.2-Society since the year 1989. Thus, it is the case of the petitioner that he was appointed as a peon by the management in the year 1981. It is also not in dispute that on 27.11.1991, the appointment of the petitioner on the post of peon was approved by the Education Officer with effect from 11.05.1991 until further orders. The petitioner was continued in service as a peon, when in the year 2001 a chargesheet was issued against him levelling certain charges of misconduct. An enquiry was held against the petitioner under the provisions of Rule 36 and 37 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 and in pursuance of the enquiry report, the petitioner's services were terminated by an order dated 21.02.2002. 3. The petitioner preferred an appeal before the School Tribunal challenging his termination order. In view of the directions issued by this Court in the case of Anna Pethe, reported in 1997 (3) Mh.L.J. 697 (Anna Manikrao Pethe Versus Presiding Officer, School Tribunal, Amravati and Aurangabad Division, Amravati & others), the Tribunal framed the three preliminary issues pertaining to the recognition of the school, the appointment of the appellant/petitioner in accordance with the provisions of Section 5 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and in regard to grant approval to the appointment of the petitioner by the Education Officer. The issue as regards the recognition of the school under the Act of 1977 was answered in the affirmative and in favour of the petitioner. The Tribunal, however, held that the appointment of the petitioner was not made as per Section 5 of the Act of 1977 and the Rules of 1981 framed thereunder. The Tribunal held that the issue as regards the grant of approval to the appointment of the petitioner on the post of Peon by the Education Officer in accordance with the Act and the Rules became redundant in view of answering the second issue about the legality of the appointment in the negative and against the petitioner. The Tribunal held that the issue as regards the grant of approval to the appointment of the petitioner on the post of Peon by the Education Officer in accordance with the Act and the Rules became redundant in view of answering the second issue about the legality of the appointment in the negative and against the petitioner. Since it was held by the Tribunal that the appointment of the petitioner was not in accordance with Section 5 of the Act of 1977 and the Rules of 1981, the Tribunal dismissed the appeal filed by the petitioner. 4. Mrs. Patil, the learned counsel for the petitioner, submitted that in the instant case, the Tribunal ought not have framed the second issue about the legality of the appointment of the petitioner in accordance with the provisions of Section 5 of the Act of 1977 as it was not the case of the management that the petitioner was working as a Peon on temporary basis and was not a permanent employee. The learned counsel for the petitioner submitted that the very fact that the respondent-management held a full fledged enquiry against the petitioner under the provisions of Rule 36 and 37 of the Rules of 1981, itself showed that the petitioner was a permanent and confirmed employee and his appointment was made in pursuance of the provisions of Section 5 of the Act of 1977. Taking this Court through the written statement of the respondent/ management, it is canvassed on behalf of the petitioner that it is not the case of the management that the petitioner was a temporary employee and his services were not confirmed. In the absence of such pleadings, according to the learned counsel for the petitioner, there was all the more reason for the Tribunal for not framing the issue about the legality of the appointment of the petitioner in accordance with the provisions of Section 5 of the Act of 1977. In the absence of such pleadings, according to the learned counsel for the petitioner, there was all the more reason for the Tribunal for not framing the issue about the legality of the appointment of the petitioner in accordance with the provisions of Section 5 of the Act of 1977. Since it was not the case of the respondent-management that the appointment of the petitioner was not made after complying with the due procedure prescribed by law and that the appointment was illegal, it is submitted on behalf of the petitioner that the Tribunal should not have held that there was no proof that an advertisement was published seeking appointment of persons on the post of peons and there was also no proof of the fact that the due procedure prescribed by law was followed before appointing the petitioner. According to the learned counsel for the petitioner, this was not the issue before the Court as it was nobody's case that the appointment of the petitioner was illegal and was not made in accordance with the provisions of Section 5 of the Act of 1977. In such type of cases, according to the learned counsel for the petitioner, there is no necessity for the Tribunal to blindly frame the issue; “Whether the appointment of the appellant was made as per Section 5 of the Maharashtra Employees of Private Schools Act, 1977 and Rules framed thereunder?” The learned counsel for the petitioner submitted that in the facts and circumstances of the case, it was not necessary for the Tribunal to frame the second issue and the Tribunal could not and should not have dismissed the appeal by answering the issue in the negative and against the petitioner. 5. Mrs. Bodade, the learned Assistant Government Pleader appearing on behalf of the respondent nos.1 and 4, supported the judgment passed by the Tribunal and submitted that the Tribunal had to abide by the directions issued by this Court in Anna Pethe's case reported in 1997 (3) Mh.L.J. 697 (Anna Manikrao Pethe Versus Presiding Officer, School Tribunal, Amravati and Aurangabad Division, Amravati & others) and there was no other option before the Tribunal but, to frame the second issue as regards the validity of the appointment of the petitioner on the post of peon. The learned Assistant Government Pleader supported the impugned order passed by the School Tribunal on 15.07.2010 and sought for the dismissal of the writ petition. 6. Shri Shambharkar, the learned counsel for the respondent nos.2 and 3, supported the order passed by the School Tribunal on 15.07.2010 and submitted that it was necessary to frame the issue about the legality of the appointment of the petitioner on the post of peon in view of the directions of this Court in Anna Pethe's case reported in 1997 (3) Mh.L.J. 697 (Anna Manikrao Pethe Versus Presiding Officer, School Tribunal, Amravati and Aurangabad Division, Amravati & others). The learned counsel for the respondent nos.2 and 3 relied on the decision reported in 2007 (6) Mh.L.J. 667 (Priyadarshini Education Trust & others Versus Ratis (Rafia) Bano d/o Abdul Rasheed & others) to substantiate his submission that it is mandatory for the management to issue an advertisement, call the candidates for the interview and duly select the candidate, who is eligible to be appointed on the post. Since there was no material to show that the prescribed procedure was followed by the respondent nos.2 and 3 before appointing the petitioner on the post of peon, according to the learned counsel for the respondent nos.2 and 3, the Tribunal rightly dismissed the appeal filed by the petitioner. 7. On hearing the learned counsel for the parties and on perusal of the appeal memo, the written statement and the impugned order dated 15.07.2010, it appears that it was not necessary for the Tribunal to frame the issue about the legality of the appointment of the petitioner on the post of peon in accordance with the provisions of Section 5 of the Act of 1977. It is not the case of the management that the petitioner was not qualified to hold the post of peon. It is not the case of the management that the petitioner was working temporarily as a peon and was not a confirmed employee. It is also not the case of the management that the appointment of the petitioner was illegal as the prescribed procedure was not followed by the management before appointing the petitioner on the post of peon. It is not the case of the management that the petitioner was working temporarily as a peon and was not a confirmed employee. It is also not the case of the management that the appointment of the petitioner was illegal as the prescribed procedure was not followed by the management before appointing the petitioner on the post of peon. This could not have been the case of the respondent-management as the respondent-management went on to hold an enquiry against the petitioner in pursuance of the provisions of Rules 36 and 37 of the Rules of 1981, surely, after considering that the petitioner was a confirmed employee duly and legally appointed by the respondent-management on the post of peon. Normally, no management will hold an enquiry under Rules 36 and 37 of the Rules of 1981 against a temporary employee and will hold it only in case of confirmed and permanent employees. The facts in this case are eloquent. They clearly show that the petitioner was a confirmed and permanent employee working as a peon admittedly since the year 1989. It is necessary to note that the petitioner was also granted the necessary approval by the Education Authorities since 11.05.1991 by the order dated 27.11.1991. In such circumstances, when it was not the case of the respondent that the appointment of the petitioner was not in accordance with the provisions of the Act of 1977 or the Rules of 1981 and when in fact, the management by thinking otherwise had held an enquiry against the petitioner under the provisions of the Rules by considering the petitioner as a confirmed employee, there was no reason for the Tribunal to frame the second issue and answer it in the negative and against the petitioner. An issue arises only when there is an assertion made by a party and the denial of the said assertion by the other party. In this case, it was not the case of the management that the appointment of the petitioner was not in accordance with the provisions of Section 5 of the Act of 1977. It was also not the case of the respondent-management as already stated hereinabove, that the services of the petitioner were temporary. In this case, it was not the case of the management that the appointment of the petitioner was not in accordance with the provisions of Section 5 of the Act of 1977. It was also not the case of the respondent-management as already stated hereinabove, that the services of the petitioner were temporary. In this set of facts, it would not be necessary for the Tribunal to frame the second issue, which is directed to be framed by Anna Pethe's case, i.e. “Whether the appointment of the appellant was made as per Section 5 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and the Rules framed thereunder ?” In fact, this issue would become redundant in cases like the one in hand, though the Tribunal has erroneously held that the issue about the grant of approval by the Education Officer to the appointment of the petitioner becomes redundant in this case. The appeal is dismissed only because the second issue is answered in the negative on the ground that the petitioner was not appointed by following the due procedure. Hence, it is reiterated that the Tribunal ought not have framed the second issue in Anna Pethe's case reported in 1997 (3) Mh.L.J. 697 (Anna Manikrao Pethe Versus Presiding Officer, School Tribunal, Amravati and Aurangabad Division, Amravati & others) in the facts and circumstances of the case. The respondent nos.2 and 3 cannot take any advantage of the law laid down in the judgment reported in 2007(6) Mh.L.J. 667 (Priyadarshini Education Trust & others Versus Ratis (Rafia) Bano d/o Abdul Rasheed & others) for supporting the order passed by the Tribunal on the ground that the appointment was not made by following the prescribed procedure as that was not the case of the respondent nos.2 and 3 before the School Tribunal and not only was the written statement silent on this regard but, the respondent nos.2 and 3 had held an enquiry against the petitioner by considering that his appointment was legal. 8. Hence, for thereasons aforesaid, the writ petition is allowed. The impugned order passed by the School Tribunal on 15.07.2010 is modified. Since, it is held that it was not necessary for the Tribunal to frame the second issue the finding of the Tribunal on this issue is set aside thereby setting aside the order of dismissal of the appeal passed by the Tribunal. The impugned order passed by the School Tribunal on 15.07.2010 is modified. Since, it is held that it was not necessary for the Tribunal to frame the second issue the finding of the Tribunal on this issue is set aside thereby setting aside the order of dismissal of the appeal passed by the Tribunal. In the interest of justice, the matter is remanded to the Tribunal to decide the appeal filed by the petitioner afresh on merits and in accordance with law. Rule is made absolute in the aforesaid terms with no order as to costs.