Page 1

1

                     REPORTABLE  IN THE SUPREME COURT OF INDIA       CIVIL APPELLATE JURISDICTION  CIVIL   APPEAL No.4606 OF 2006   

JELES EDUCATION SOCIETY & ORS.                    .......APPELLANTS VERSUS

R.T. BHITALE              .......RESPONDENT                                                     

J U D G M E N T J.S.KHEHAR, J. 1. Appellant  No.1  –  Jeles  Education  Society  (hereinafter  referred  to  as  `the  appellant-society')  runs  and  operates  the  Mahatma Gandhi Vidyamandir School. The school is upto Class-X. One  Raut was engaged by the school, as a trained Graduate Teacher,  to  teach the subjects of English and Sanskrit.  For reasons which are  not  relevant  for  the  present  controversy,  Raut  tendered  his  resignation, in the middle of the academic session 1989-90.  The  same was accepted on 26.07.1989. 2. The  appellant-society  issued  an  advertisement  on  04.12.1987, seeking to fill up the vacancy created as a result of  the resignation of Raut.  An English translation of the aforesaid  advertisement, is being reproduced hereunder:

“WANTED  Wanted  trained  Graduate  Teacher  to  teach  

English  &  Sanskrit.   Priority  for  Backward  Class.  Contact  immediately  with  certificates.   Mahatma  Gandhi Vidyamandir, Bandra (E), Mumbai-51.”

3. It is apparent that the appellant-society was looking out

Page 2

2

for a Trained Graduate Teacher to teach English and Sanskrit. It  also  emerges  from  the  advertisement,  that  the  choice  for  appointment was to be made from out of backward class candidates,  if  possible.   The  respondent-R.T.Bhitale,  who  belonged  to  the  category  of  'Other  Backward  Class'  which  is  also  amongst  the  backward  classes,  recognized  for  the  present  process  of  appointment, applied for the post of Trained Graduate Teacher, in  furtherance of the advertisement extracted above. He was selected,  and was issued the following appointment order on 07.12.1987 :

“With  reference  to  your  application  dated  4.4.1987, I have the pleasure to inform you that  you are hereby appointed as an Asstt. Teacher on  Rs.365/- per month in the scale of Rs.365-15-500- 20-660-EB-20-760 with effect from 7.12.1987 or the  date you report for duty.  You will be entitled to  allowance  such  as  compensatory  local  allowances,  House  Rent  Allowance  and  dearness  allowance  as  specifically sanctioned by Government from time to  time. 2. Your appointment is purely temporary for a  period of (not legible) months from 7.12.1987 to  30.4.1988 (not legible). After expiry of the above  period your services shall stand terminated without  any notice or (not legible). 3. The terms of your employment and conditions  of service shall be as laid down in the Maharashtra  Employees  of  Private  Schools  (Conditions  of  Service) Regulation Act, 1977 and the rules made  thereunder. 4. You  shall  have  to  undergo  a  medical  examination by Dr.(not legible) within three months  from the date of joining the post. Your appointment  shall  be  conditional  pending  the  receipt  of  physical fitness certificate from the doctor whose  name is mentioned above.”

(emphasis is ours) 4. It  is  therefore  apparent,  that  the  respondent's  appointment, was for the remaining period of the academic session

Page 3

3

1987-88,  and would culminate on 30.04.1988.  The School Management  Committee took a decision on 29.03.1988, not to continue with the  respondent any further, and accordingly, in consonance with the  letter of appointment dated 07.12.1987, his appointment came to an  end on 30.04.1988.  He was intimated about his termination on the  same day i.e., on 30.03.1988.  5. Dissatisfied with the order, by which his services were  dispensed with, the respondent preferred an appeal assailing the  order dated 30.04.1988 under Section 9 of the Maharashtra Employees  of Private Schools (Conditions of Service) Regulation Act, 1977  (hereinafter referred to as `the 1977 Act’). The position adopted  by  the  respondent  was,  that  his  appointment  vide  order  dated  07.12.1987 was liable to be considered as permanent, since the same  was  against  a  permanent  vacancy,  created  by  the  resignation  of  Raut. It was also his contention, that he belonged to the reserved  category, for which the post had been advertised, and as such,  there  was  no  justification  whatsoever  for  not  treating  his  appointment as permanent. 6. The above position adopted by the respondent, was sought  to be contested by the appellant-society. The case set up by the  appellant-society  was,  that  the  respondent  did  not  satisfy  the  conditions of eligibility, for occupying the vacancy created by  Raut. In this behalf even while acknowledging the position adopted  by the respondent, namely, that the post in question was to be  filled up by way of reservation out of backward classes candidates,  it  was  pointed  out,  that  those  who  had  responded  to  the  advertisement  dated  04.12.1987,  should  have  had  qualifications

Page 4

4

which  would  enable  them  to  teach  the  subjects  of  English  and  Sanskrit, namely, the subjects which Raut was handling, while in  the employment of the Mahatma Gandhi Vidyamandir School. It was  also the case of the appellant-society, that whilst the respondent  possessed the qualifications to teach English, he did not possess  the qualifications  to teach Sanskrit, and without possessing the  said qualifications, he would be useless for imparting training in  the subject of Sanskrit. To substantiate, that the respondent did  not possess any qualification in Sanskrit, the appellant-society  has placed on the record of this case, a xerox copy of the B.A. (Special)  degree  qualification,  as  also,  the  B.Ed  degree  qualification awarded to the respondent, wherefrom it is apparent,  that he did not undertake any course in the subject of Sanskrit.  The fact that the respondent did not possess any qualification in  the subject of Sanskrit, is not a matter of dispute, between the  rival parties.   7. The School Tribunal accepted the appeal preferred by the  respondent, vide an order dated 26.06.1992. The School Tribunal  arrived at the conclusion, that the appointment of the respondent  was liable to be treated as permanent, and as such, since the  services of the respondent had been terminated in violation of the  statutory rules, his termination from employment, was held as not  sustainable in law. 8. The order dated 26.06.1992 passed by the School Tribunal  was  assailed  by  the  appellant-society  before  the  High  Court  of  Judicature at Bombay (hereinafter referred to as ‘the High Court’)  by filing Writ Petition No.232 of 1993. During the hearing of the

Page 5

5

aforesaid writ petition, the High Court passed an interim order  dated 05.03.1993. The interim order passed by the High Court is  available on the record of this case. Its perusal reveals, that as  an interim measure, the High Court required the appellant-society  to engage the respondent herein, on a year to year basis, without  prejudice to the rights and contentions of the rival parties.  It  is also not a matter of dispute, that in furtherance of the interim  order  dated  05.03.1993,  the  respondent  was  continued  in  the  employment of the appellant-society, on a year to year basis.   9. After having been reinstated in service in terms of the  order  passed  by  the  School  Tribunal  dated  26.06.1992,  and  the  interim  order  passed  by  the  High  Court  on  05.03.1993,  the  respondent desired to contest elections in January, 1995. He sought  leave for the above purpose. The request of the respondent, for  leave  made  through  his  representation  dated  19.01.1995,  was  declined  by  the  appellant-society  on  31.1.1995.  The  appellant- society advised the respondent to tender his resignation, if he  desired to contest the above election, under Rule 42(3) of the  Maharashtra Private School Employees (Condition of Service) Rules,  1981 (hereinafter referred to as `the `1981 Rules’). Despite the  fact, that the respondent was denied leave for the period in terms  of  his  representation  dated  19.01.1995,  the  respondent  did  not  attend to his duties, and any how contested the above election. He  also did not tender his resignation in terms of Rule 42(3) of the  1981 Rules.  It is therefore, that the appellant-society yet again  terminated  the  services  of  the  respondent,  by  an  order  dated  16.02.1995.

Page 6

6

10. The above order of termination dated 16.02.1995 was again  assailed  by  the  respondent,  by  preferring  an  appeal  before  the  School Tribunal, under Section 9 of the 1977 Act. On 09.03.1995,  the  School  Tribunal  passed  an  interim  order  in  favour  of  the  respondent,  by  which  the  impugned  order  of  termination  dated  16.02.1995  was  ordered  to  be  stayed.  It  is  in  the  above  circumstances,  that  the  respondent  once  again  despite  his  termination  for  the  second  time,  was  permitted  to  continue  in  service. 11. The above appeal filed by the respondent, to assail the  order dated 16.02.1995, was dismissed in default on 30.04.2001. A  request made by the respondent for restoration of the same, was  declined by the School Tribunal on 10.02.2003.  It is in the above  circumstances, that the respondent preferred Writ Petition No.2975  of 2003 before the High Court. By an order dated 01.12.2003, the  High  Court  allowed  the  above  writ  petition,  and  ordered  the  restoration of the appeal preferred by the respondent, before the  School Tribunal. By its order dated 07.05.2004, the School Tribunal  dismissed the appeal filed by the respondent, against the order of  his termination dated 16.02.1995.  On this occasion, the respondent  approached the High Court by filing Writ Petition No.10576 of 2004. 12. By the impugned order dated 28.10.2005, the High Court  collectively disposed of Writ Petition No.232 of 1993 filed by the  appellant-society, and Writ Petition No. 10576 of 2004 preferred by  the respondent. The High Court affirmed the order passed by the  School Tribunal dated 26.06.1992 holding, that the appellant was  inducted as a permanent employee, and his services were dispensed

Page 7

7

with in violation of the statutory rules.  Insofar as Writ Petition  10576  of  2004  is  concerned,  the  High  Court  arrived  at  the  conclusion,  that  the  School  Management  was  not  justified  in  requiring the respondent to tender his resignation under Rule 42(3)  of the 1981 Rules, on account of the fact that he was a permanent  employee, and not a temporary employee.   13. The instant controversy, necessarily has to be examined  in  the  background  of  the  statutory  rules  relied  on.  First  and  foremost, it is essential for us to take into consideration Section  5 of the 1977 Act. The same is being extracted hereunder:       

“5.  Certain  obligations  of  Management  of  private  schools:-  (1)  The  Management  shall,  as  soon  as  possible, fill in, in the manner prescribed, every  permanent  vacancy  in  a  private  school  by  the  appointment of a person duly qualified to fill such  vacancy:  

Provided that, unless such vacancy is to be  filled  in  by  promotion,  the  Management  shall,  before proceeding to fill such vacancy, ascertain  from  the  Educational  Inspector,  Greater  Bombay,  the Education Officer, Zilla Parishad or, as the  case may be, the Director or the Officer designated  by  the  Director  in  respect  of  schools  imparting  technical,  vocational,  art  or  special  education,  whether there is any suitable person available on  the list of surplus persons maintained by him, for  absorption in other schools; and in the event of  such person being available, the Management shall  appoint that person in such vacancy.  (2)  Every  person  appointed  to  fill  a  permanent  vacancy except Shikshan Sevak shall be on probation  for  a  period  of  two  years.  Subject  to  the  provisions of sub sections (3) and (4), he shall,  on  completion  of  this  probation  period  of  two  years, be deemed to have been confirmed.

Provided  that,  every  person  appointed  as  shikshan sevak shall be on probation for a period  of three years.  (2A) Subject to the provisions of sub-sections  (3) and (4), Shikshan Sevak shall, on completion of  the probation period of three years, be deemed to  have been appointed and confirmed as a teacher.

Page 8

8

(3) If in the opinion of the Management, the work  or behaviour of any probationer, during the period  of  his  probation,  is  not  satisfactory,  the  Management may terminate his services at any time  during the said period after giving him one month's  notice or salary or honorarium of one month in lieu  of notice. (4)  If  the  services  of  any  probationer  are  terminated  under  sub-section  (3)  and  he  is  reappointed by the Management in the same school or  any other school belonging to it within a period of  one year from the date on which his services were  terminated, then the period of probation undergone  by him previously shall be taken into consideration  in calculating the required period of probation for  the purposes of sub-section (2).  (4A) Nothing in sub-section (2), (3) or (4) shall  apply  to a  person appointed  to fill  a permanent  vacancy by promotion or by absorption as provided  under the proviso to sub-section (1). (5)  The  Management  may  fill  in  every  temporary  vacancy by appointing a person duly qualified to  fill such vacancy. The order of appointment shall  be drawn up in the form prescribed in that behalf,  and shall state the period of appointment of such  person.”

      (emphasis is ours) 14. It  was  the  contention  of  the  learned  counsel  for  the  respondent, that Section 5 of the 1977 Act envisages two water  tight compartments. The first postulated through Section 5(1) which  caters to appointment against permanent vacancies, and Section 5(5)  caters  to  the  second  contingency,  which  relates  to  employment  against temporary vacancies.  In view of the above, the submissions  advanced at the hands of the learned counsel for the respondent  seems to be justified and we endorse the same, namely, that Section  5  deals  with  filling  up  of  permanent  as  well  as  temporary  vacancies. It is however important to highlight, that irrespective

Page 9

9

of  the  nature  of  appointment  (against  a  permanent  or  temporary  vacancy),  both  the  sub-sections  of  Section  5,  mandate  that  the  appointee will have to be “... a person duly qualified...”   15. The other statutory provision, that needs to be taken  into consideration is Rule 9, of the 1981 Rules. A relevant extract  of the same is being extracted hereunder:

"9. Appointment of staff. (1)  The  teaching  staff  of  the  school  shall  be  adequate having regard to the number of classes in  the school and the curriculum including alternative  courses  provided  and  the  optional  subjects  taught  therein. (2) Appointments of teaching staff (other than the  Head and Assistant Head) and those of non-teaching  staff  in  a  school  shall  be  made  by  the  School  Committee:

Provided that, appointments in leave vacancies of  a short duration not exceeding three months, may be  made by the Head, if so authorized by the School  Committee. (3)  Unless  otherwise  provided  in  these  rules  for  every  appointment to be made in a school, for a  teaching  or  a  non-teaching  post,  the  candidates  eligible  for  appointment  and  desirous  of  applying  for such post shall made an application in writing  giving full details regarding name, address, date of  birth, educational and professional qualifications,  experience,  etc, attaching  true  copies  of  the  original certificates. It shall not be necessary for  candidates other than those belonging to the various  sections of backward communities for whom posts are  reserved under sub-rule (7) to state their castes in  their applications. (4) xxx xxx xxx

Page 10

10

(5) xxx xxx xxx (6) xxx xxx xxx +[(7) The Management shall reserve 52 per cent of  the total number of posts of the teaching and non- teaching  staff  for  the  persons  belonging  to  the  Scheduled  Castes,  Scheduled  Tribes,  Denotified  Tribes  (Vimukta  Jatis),  Nomadic  Tribes,  Special   Backward  category  and  other  Backward  Classes  as  follows, namely:-    (a)      Scheduled Castes           13 per cent;

         (b)      Scheduled Tribes           7 per cent;           (c)      De-notified Tribes (A)     3 per cent;            (d)      Nomadic Tribes (B)         2.5 per cent;           (e)      Nomadic Tribes (C)         3 per cent;           (f)      Nomadic Tribes (D)         2 per cent;           (g)      Special Backward Category  2 per cent;            (h)      Other Backward Classes     19 per cent;                                      Total -  52 per cent.    

+sub-rule  (7)  substituted  by  Not.  No.  PRASHANYA..  1005/ (94/05)/SE-2 dated 08.07.2008. (8)  For  the  purpose  of  filling  up  the  vacancies  reserved  under  sub-rule  (7)  the  Management  shall  advertise the vacancies in at least one newspaper  having  wide  circulation  in  the  region  and  also  notify the vacancies to the Employment Exchange of  the  District  and  to  the  District  Social  Welfare  Officer +[and to the associations or organizations  of  persons  belonging  to  Backward  Classes,  by  whatever  names  such  associations  or  organizations  are called, and which are recognized by Government  for  the  purposes  of  this  sub-rule]  requisitioning  the names of qualified personnel, if any, registered  with them.  If it is not possible to fill in the  reserved post from amongst candidates, if any, who  have  applied  in  response  to  the  advertisement  or  whose  names  are  recommended  by  the  Employment

Page 11

11

Exchange or the District Social Welfare Officer +[or  such associations or organizations as aforesaid] or  if no such names are recommended by the Employment  Exchange or the District Social Welfare Officer +[or  such  associations  or  organization  as  aforesaid]  within  a  period  of  one  month  the  Management  may  proceed to fill up the reserved post in accordance  with the provisions of sub-rule (9). + The words are inserted by Not No. PST/1083/194/SE- 3- Cell, dated 20.12.1984. (9) (a)  In case it is not possible to fill in the  teaching post for which a vacancy is reserved for a  person  belonging  to  a  particular  category  of  Backward  Classes,  the  post  may  be  filled  in  by  selecting  a  candidate  from  the  other  remaining  categories in the order specified in sub-rule (7)  and  if  no  person  from  any  of  the  categories  is  available, the post may be filled in temporarily or  an year-to-year basis by a candidate not belonging  to the Backward Classes.

 (emphasis is ours)

16. It  was  the  contention  of  the  learned  counsel  for  the  respondent,  that  under  Rule  9,  which  caters  to  appointment  of  teaching staff, the respondent was liable to be appointed on a  permanent post, because his appointment was against a permanent  vacancy,  created  by  Raut.  It  was  also  his  contention,  that  he  belonged to the category of backward classes (contemplated under  Rule 9(7) of the 1981 Rules). It was submitted, that  even though  the vacancy in question was earmarked for scheduled castes, the  respondent was entitled to be permanently appointed against the  same, because of the absence of a suitable and eligible Scheduled

Page 12

12

Caste  candidate  or  even  from  the  other  categories  of  backward  classes, in terms of Rule 9(8) of the 1981 Rules (extracted above).  Since  the  respondent  was  selected  against  a  permanent  vacancy,  which had been duly advertised, as also, against a post reserved  for backward classes, his appointment was liable to be considered  to be permanent, for all intents and purposes, and specially in  terms of the mandate contained in Rule 9(9)(a). 17. To counter the submissions advanced at the hands of the  learned  counsel  for  the  respondent,  learned  counsel  for  the  appellants, has invited our attention to Section 5(1), extracted  above,  in  order  to  contend,  that  it  was  imperative  for  the  management  to  fill  up  all  permanent  vacancies,  and  that,  a  permanent vacancy should not be left unfilled on account of the  adverse  affect  which  was  liable  to  be  caused  to  the  students,  enrolled in the school run by the appellant-society. Referring to  Section 5(1), it was further submitted, that the selected candidate  had to be “...a person duly qualified to fill such vacancy...”. In  addition to the above, it was the contention of the learned counsel  for  the  appellants,  that  in  the  process  of  selection,  the  appellant-society required a Trained Graduate Teacher, possessing  qualifications  to  teach  the  subjects  of  English  and  Sanskrit.  However, in response to the advertisement dated 04.12.1987, the  appellant-society did not find any suitable candidate possessing  the above qualifications.  It is in the above view of the matter,  that the appellant-society selected the respondent, and issued an  offer  of  appointment  on  temporary  basis,  till  the  end  of  the  academic session i.e., 30.04.1988. The question that arises for our

Page 13

13

consideration is, whether the respondent was liable to be treated  as a permanent employee, or whether it was open to the appellant- society, to appoint him on temporary basis upto 30.04.1988? 18. Having given our thoughtful consideration to the issue in  hand,  we  are  satisfied,  that  the  effort  at  the  hands  of  the  appellant-society, in the first instance, ought to have been to  fill up the permanent vacancy created by Raut, on permanent basis.  This mandate clearly emerges from Section 5(1) of the 1977 Act and  Rule 9(9)(a) of the 1981 Rules. However, in case a candidate from  the backward class was not available, it was open to the appellant- society to fill up the post temporarily, on a year to year basis by  a candidate who may not belong to the backward classes. It was  however  the  emphatic  submission  of  the  learned  counsel  for  the  respondent, that in case of absence of a candidate belonging to the  backward class, the only option available to the appellant-society  was  to  fill  up  the  vacancy  by  appointing  a  candidate  “…not  belonging  to  the  backward  class”.   It  was  submitted,  that  the  appellant-society had no option, but to follow the said procedure,  in case it desired to fill up the vacancy created by Raut, on  temporary basis. 19. In  our  considered  view,  it  is  apparent,  that  the  respondent did not fulfill the desired qualifications for occupying  the permanent vacancy created by Raut, inasmuch as, he did not  possess the educational qualification of Sanskrit.  On account of  his not possessing the qualification of Sanskrit, the respondent  was clearly not eligible for filling up the vacancy created by  Raut, on a permanent basis.

Page 14

14

20. The next question that arises for our consideration is,  whether the aforesaid vacancy could be filled up on a temporary  basis, by a candidate belonging to the backward class? In our view,  the answer to the above has to be in the affirmative. We say so  because, while filling up the vacancy if a suitable candidate was  not available from the particular backward class (for which it was  earmarked, in the present case – Scheduled Caste), it was open to  the appellant-society to fill up the vacancy, out of the candidates  belonging to other backward classes.  And if a suitable candidate  belonging to the other backward classes was also not available,  then as submitted by the learned counsel for the respondent, the  vacancy could be filled up temporarily, or on a year to year basis,  by a suitable candidate from the general/open category. But, how  would the post be filled up if none of the candidates who had  applied, is considered suitable, on account of lack of the required  qualifications. In such a situation, it must be kept in mind, that  if out of the candidates who had applied for the advertised post, a  backward class candidate though not fulfilling the qualifications  stipulated for the post, was found to be the most meritorious, he  could  be  appointed  against  the  advertised  vacancy  on  temporary  basis, under Rule 9(9)(a) of the 1981 Rules. The respondent was  found  to  be  most  meritorious  candidate,  out  of  those  who  had  responded to the advertisement dated 04.12.1987. But since he did  not  possess  the  qualifications  stipulated  for  the  advertised  vacancy, it was well within the right of the appellant-society, to  offer him a temporary appointment till the end of the academic  year, under Rule 9(9)(a). Under Rule 9(9)(a), candidates can only

Page 15

15

be appointed on temporary basis, or on a year to year basis, when  none  of  the  backward  class  candidates  is  found  suitable.  Accordingly,  when  the  respondent  was  appointed  temporarily  on  07.12.1987 (upto 30.04.1988) his appointment was in conformity and  in consonance with Rule 9(9)(a) of the 1981 Rules.  21. In view of the above, we are satisfied that the order of  termination of the respondent’s services on 30.04.1988, was not  only in consonance with his appointment order dated 07.12.1987, but  was also in conformity with the statutory rules. 22. Having recorded our above conclusion, it is not necessary  for us to deal with the second issue canvassed before us. Be that  as it may, we feel compelled to deal with the said issue also, on  account of the fact, that detailed submissions were advanced on the  said issue also. To determine the validity of the second order of  termination  dated  16.02.1995,  Rule  42  of  the  1981  Rules  is  relevant. The same is extracted hereunder:

“42.  Contesting  Elections:  (1)  Subject  to  the  provisions of sub-rules (3) to (6)(both inclusive),  an  employee  may,  with  previous  intimation  to  the  Management  in  writing,  contest  elections  to  the  University Senate in accordance with the provisions  laid  down  in  the  respective  non-Agricultural  University  Acts,  or  as  the  case  may  be,  to  the  Maharashtra Legislative Council as provided in sub- clauses (b) and (c) of clause (3) of Article 171 of  the Constitution of India. (2) Subject to the provisions of sub-rules (3) to (6)  (both inclusive), an employee may, with the previous  permission  of  the  Management  in  writing,  contest  election  to  public  offices  [other  than  those  mentioned in sub-rule (1)] at the Local, District,  State or National level. (3) Immediately after filing the nomination form for  contesting such elections and the same being declared  as valid, the employee shall proceed on leave due and

Page 16

16

admissible to him; and if no leave is to his credit,  he shall proceed on extraordinary leave, and shall  continue to be on leave till the declaration of the  election results.   

Provided  that  the  Management  may  require  a  temporary employee contesting such election to resign  his post even during the election campaign, if in the  opinion of the Management, the election campaign is  likely  to  adversely  affect  the  duties  of  the  employee. (4) The employee contesting such an election shall  not involve the Management, employees or students of  the  Institution  in  which  he  is  employed,  in  the  election campaign. (5)(a)  In  the  event  of  his  being  elected  the  permanent employee shall apply for further extension  of leave due and admissible to him and if no leave is  at  his  credit,  the  extra-ordinary  leave  for  the  period for which he is likely to continue to hold the  office;  and  the  same  shall  be  granted  by  the  Management in relaxation of the limit prescribed in  sub-rule (13) of rule 16. (b) In case, however, if the sessions of meetings  of the public office are held at intervals he may be  allowed to avail himself of leave due and admissible  to him or, as the case may be, the extra-ordinary  leave,  for  the  actual  periods  of  the  sessions  or  meetings including the periods of journey and may be  allowed  to  attend  the  school  during  the  remaining  periods. (c) The period of extra-ordinary leave availed of  for the purpose, shall be counted for purposes of  annual increments. (6)(a) In the event of a permanent employe further  becoming  an  office-bearer  such  as  Chairman,  President,  Vice-President,  Secretary,  Joint  Secretary, etc., which demands full-time attendance  or  long-time  absence  from  normal  duties,  he  shall  apply for keeping his lien on the post which he held,  which shall be granted by the Management.

(b) In the case of a non-permanent employee who is  on leave till the declaration of election results, in  the event of his being elected he shall resign the  post  he  held  immediately  on  his  election  to  the  public office.

Page 17

17

(7) Provisions of sub-rules (3), (4) and (5) shall  mutatis mutandis apply to,- (i) the  permanent  employees  elected  to  public  offices  being  further  elected  on  the  University  Senate, or as the case may be, the State Board of  Secondary and Higher Secondary Education, by virtue  of their office;

(ii) the permanent employee nominated by the State  Government on the State Board or Division Board of  Secondary and Higher Secondary Education.”  

Under  Rule  42(3),  it  was  open  to  the  management,  to  allow  an  employee seeking leave to contest an election to proceed on leave.  However, in extra-ordinary circumstances where it was felt, that  the employees election campaign, was likely to adversely affect  his duties, he could be required to tender his resignation. In  furtherance of the request made by the respondent seeking leave,  the appellant-society through its communication dated 31.01.1995,  advised him to tender his resignation, under Rule 42(3). The said  advice was tendered specifically keeping in mind, the importance  of  the  duties  and  responsibilities  of  the  respondent,  in  the  background of the upcoming annual examinations. The respondent did  not accede to the suggestion made to him by the appellant-society,  through  its  communication  dated  31.01.1995.  All  the  same,  he  contested the election, and abstained himself from his duties, for  the duration of the period for which he had applied for leave, for  his election campaign.  In the above view of the matter, we are  satisfied,  that  the  order  of  termination  dated  16.02.1995  was  fully  justified,  specially  when  the  respondent  despite  being  asked, did not abide by the requirements indicated in the proviso

Page 18

18

to Rule 42(3) of the 1981 Rules. Having abstained from duties  without leave, it was open to the appellant-society to dispense  with the respondent's services. It is clear that his services were  dispensed with (by the order dated 16.02.1995), in compliance with  Rule 42(3). Acceptance of the prayer of the respondent, would have  the result of interpreting the above Rule, as if it was of no  consequence. 23. For the reasons recorded hereinabove, we are satisfied  that  both  the  orders  of  termination  dated  30.03.1988  and  16.02.1995 were in consonance with law.  Accordingly, the impugned  order  passed  by  the  Bombay  High  Court  on  28.10.2005  holding  otherwise, is hereby set aside. 24. The instant appeal is allowed, in the above terms. 25. During the course of recording this order, it was pointed  out by the learned counsel for the respondent, that the High Court  by its order dated 05.03.1993 (in Writ Petition No.232 of 1993)  had allowed the respondent to continue in service from year to  year. Insofar as the arrears of salary payable to the respondent  is  concerned,  as  a  temporary  arrangement,  the  High  Court  had  directed  the  appellant-society  to  pay  the  respondent  a  sum  of  Rs.15,000/-.  It  was  submitted,  that  the  aforesaid  sum  of  Rs.15,000/-, was paid by the appellant-society to the respondent,  as far back as in 1993. Learned counsel for the respondent prays,  that the above amount be not recovered from him, as the respondent  was  not  in  a  position  to  refund  the  same.   Having  given  a  thoughtful consideration to the instant issue, we are of the view,  that the above amount paid to the respondent, as far back as in

Page 19

19

1993,  should  not  be  recovered  from  the  respondent.  We  order  accordingly.                       

                       ..........................J.                (JAGDISH SINGH KHEHAR)

                                                 .........................J.  

         (R. BANUMATHI) NEW DELHI; SEPTEMBER 30, 2015.