PRAGATI MAHILA SAMAJ Vs ARUN S/O LAXMAN ZURMURE .
Bench: J. CHELAMESWAR,ABHAY MANOHAR SAPRE
Case number: C.A. No.-006498-006498 / 2016
Diary number: 34248 / 2014
Advocates: SUBHASISH BHOWMICK Vs
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 6498 OF 2016 (ARISING OUT OF SLP (C) No. 30834/2014)
Pragati Mahila Samaj & Anr. …….Appellant(s)
VERSUS
Arun & Ors. ……Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. Leave granted.
2. This appeal is filed against the final judgment
and order dated 01.08.2014 passed by the High
Court of Judicature at Bombay Bench at Nagpur in
Writ Petition No. 2374 of 1999 whereby the High
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Court allowed the writ petition filed by respondent
No.1 herein and set aside the order dated
05.08.1998 passed by the College Tribunal, Nagpur
University, Nagpur in Appeal No. N-10 of 1998 and
quashed the termination order dated 31.03.1998
issued by appellant No.1 herein by which the
services of the respondent No. 1 had been
terminated. The High Court further directed the
concerned authorities to reinstate the respondent
No.1 on the post of Lecturer but without payment of
any back wages to him.
3. Facts of the case lie in a narrow compass.
They, however, need mention in brief to appreciate
the short controversy involved in the appeal. The
facts are taken from the SLP.
4. Pragati Mahila Mahavidyalaya (appellant No.2
herein) is a girls college at Bhandara, Maharashtra.
It is run by appellant No. 1, which is a registered
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trust/society at Bhandara. The appellant No. 2
published an advertisement on 23.06.1996 inviting
application for the posts of Lecturers. The
respondent No.1 was selected and was accordingly
given appointment for the post of Lecturer in
Geography as part-time Lecturer vide appointment
order dated 20.07.1996. The appointment was
temporary. It was for a fixed period from 01.08.1996
to 30.04.1997. It came to an end by efflux of time.
In the Academic Session 1997-1998, another
advertisement was issued and vide appointment
order dated 21.07.1997, respondent No. 1 was
appointed as part-time Lecturer in Geography on
temporary basis upto 30.04.1998. On 21.03.1998,
the Nagpur University (respondent No.2 herein)
granted approval to the appointment of respondent
No.1 as a part-time Lecturer.
5. According to the respondent No.1, he was
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appointed as full-time Lecturer. The respondent
No.1 also made a complaint to the Grievance
Committee of the University to this effect. However,
vide order dated 31.03.1998 (Ann. 5), the services of
respondent No.1 were terminated w.e.f. 30.04.1998.
6. Challenging the order of termination,
respondent No.1 filed an appeal being Appeal No.
N-10 of 1998 before the University and College
Tribunal, Nagpur (in short “the Tribunal”) under
Section 59 of the Maharashtra University Act, 1994.
By order dated 05.08.1998, the Tribunal dismissed
the appeal and upheld the termination order. It was
held that the respondent No.1 was not appointed on
a regular basis but his appointment was only on
temporary/ad-hoc basis and it was for a specified
term as a part-time Lecturer.
7. The respondent No.1, felt aggrieved, filed a writ
petition being Writ Petition No. 2374 of 1999 before
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the High Court praying for setting aside of the order
of Tribunal dated 05.08.1998 passed in Appeal No.
N-10 of 1998. The High Court vide order dated
16.12.2008 partly allowed the writ petition and set
aside the order of Tribunal dated 05.08.1998 and in
consequence also set aside the termination order
dated 31.03.1998. The High Court further directed
the Management to reinstate the respondent No.1 in
services but without payment of any back wages to
the respondent No.1.
8. Challenging the said order, the College filed an
appeal being L.P.A. No. 26 of 2009 before the
Division Bench of the High Court.
9. By order dated 23.06.2009, the Division Bench
disposed of the appeal and remanded the matter to
the Single Judge of the High Court for deciding it
afresh on merits.
10. After remand, the writ petition was restored to
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its original number, i.e. W.P. No. 2374 of 1999. It
was, however, dismissed for want of prosecution by
order dated 08.07.2010.
11. Thereafter an application being Civil
Application No. 149 of 2010 was filed by respondent
No.1 for restoration of the writ petition. It was also
dismissed in default on 08.04.2011.
12. In 2012, the respondent No.1 filed another
application for restoration of the writ petition. It is,
however, not clear from the pleadings as to by
which order, the Writ Petition was restored to its
file. Be that as it may, vide impugned judgment
dated 01.08.2014, the Single Judge allowed the writ
petition, set aside the order dated 05.08.1998
passed by the Tribunal in Appeal No. N-10/1998
and quashed the termination order dated
31.03.1998. It was held that the advertisement
(Ann.1) nowhere said that the appointment is
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temporary. It was also held that since the
appointment was made on the basis of selection and
interview and hence it has to be held as permanent.
The direction was issued to reinstate the respondent
No. 1 in service but without paying him any back
wages for long intervening period.
13. Challenging the said judgment, the appellants
have filed this appeal by way of special leave before
this Court.
14. Heard Mr. A.K. Sanghi, learned senior counsel
for the appellants and Mr. Nitin Bhardwaj, learned
counsel for respondent No.1, Mr. Kishor Lambat,
learned counsel for respondent No.2 and Ms.
Shubhada K. Phattankar, learned counsel for
respondent No.3. We have also perused the written
submissions filed by the parties.
15. Mr. A.K. Sanghi, learned Senior Counsel
appearing for the appellant, urged two points. In
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the first place, learned counsel contended that the
Single Judge of the High Court erred in allowing the
writ petition filed by respondent No.1 and thereby
erred in setting aside the order of the Tribunal
which had rightly upheld the termination order of
respondent No.1.
16. In the second place, Mr. Sanghi pointed out
that the appointment of respondent No.1 to the post
of Lecturer was part-time in nature as is clear from
the advertisement (Ann.1). Learned counsel further
pointed out that the appointment being temporary
as well as for a fixed period as is clear from the
appointment orders (Annexures 2 & 3), the
respondent No.1 had no right to claim the status of
permanent employee in service for want of any
material and seek the relief of regularization and
reinstatement.
17. Learned counsel further submitted that since
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the appointment of respondent No.1 is regulated
and controlled by the provisions of the Maharashtra
Employees of Private Schools (Conditions of Service)
Regulation Act, 1977 (in short "The Act"), the nature
of respondent No.1’s appointment coupled with the
legality and correctness of the termination order is
required to be decided in the first instance in the
light of the relevant provisions of the Act. Learned
Counsel contended that the High Court
unfortunately did not even take note of any
provision of the Act which has application to the
facts of the case.
18. Learned counsel then submitted that this
Court had the occasion to examine this very
question, which is the subject matter of this case, in
the case of Hindustan Education Society & Anr.
vs. SK. Kaleem SK. Gulam Nabi & Ors reported in
(1997) 5 SCC 152 wherein this Court examined the
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question in the light of the provisions of the Act and
held that the appointment of the employee
concerned was temporary in nature and, therefore,
he could not be considered as permanent employee.
This Court repelled all the submissions of the
employee, which were pressed in service for
challenging the order of termination, and upheld the
termination order as being legal.
19. Learned Counsel, therefore, submitted that
keeping in view the provisions of the Act and the law
laid down in Hindustan Education Society's case
(supra), which again was not taken note of by the
High Court, the impugned order cannot be said to
be passed in conformity with the law and hence it is
not legally sustainable. It was lastly urged that the
writ petition filed by respondent No.1 is, therefore,
liable to be dismissed by upholding the order of the
Tribunal and in consequence of the termination
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order.
20. In reply, learned counsel for respondent No.1
(employee) supported the impugned order and
contended that no case is made out to set aside the
impugned order as the same is based on proper
reasoning calling for no interference therein.
21. Having heard the learned counsel for the
parties and on perusal of the record of the case, we
find force in the submissions of the learned counsel
for the appellants.
22. In our considered opinion, learned counsel for
the appellants rightly argued that the rights of the
parties to the case at hand are governed by the
provisions of the Act and, therefore, question
involved in the case needs to be decided keeping in
view the provisions of the Act and the law laid down
in Hindustan Education Society's case (supra)
which applies to the facts of this case.
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23. Since the question involved in the case is
squarely covered by the law laid down in Hindustan
Education society’s case (supra), it is apposite to
reproduce the decision in full rather than to
mention its ratio only. It reads as under:
“3………The admitted position is that Respondent 1 came to be appointed on 10-6-1992 against a clear vacancy with the following stipulation:
“Your appointment is purely temporary for a period of 11 months from 11-6-1992 to 10-5-1993 in the clear vacancy. After expiry of the above period your service shall stand terminated without any notice.”
4. Thus, it could be seen that the appointment of the first respondent was only a temporary appointment against a clear vacancy. The appointments are regulated and controlled by the provisions of the Maharashtra Employees of Private School (Conditions of Service) Regulation Act, 1977. Section 5 of the Act postulates as under:
“5. Certain obligations of Managements 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 appointment of a person duly qualified to fill such vacancy:
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Provided that, unless such vacancy is to be filled in by promotion, the Management shall, before proceeding to fill in such vacancy, ascertain from the Educational Inspector, Greater Bombay, or as the case may be, the Education Officer, Zilla Parishad, 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 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. (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 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
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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). (4-A) Nothing in sub-sections (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.”
5. In view of the above and the order of appointment, the appointment of the respondent was purely temporary for a limited period. Obviously, the approval given by the competent authority was for that temporary appointment. As regards permanent appointments, they are regulated by sub-sections (1) and (2) of Section 5 of the Act according to which the Management shall, as soon as possible, fill up, in the manner prescribed, every permanent vacancy in a private school by
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appointment of a person duly qualified to fill in such vacancy. Every person so appointed shall be put on probation for a period of two years subject to the provisions of sub-sections (4) and (5). He shall, on completion of the probation period of two years, be confirmed.
6. Under these circumstances, the appointment of the respondent cannot be considered to be a permanent appointment. As a consequence, the direction issued by the High Court in the impugned judgment dated 31-7-1996 in Writ Petition No. 5821 of 1995 that he was regularly appointed is clearly illegal and cannot be sustained.
7. The appeal is, accordingly, allowed. The order of the High Court stands reversed and the writ petition stands dismissed. No costs.”
24. Mere perusal of the aforementioned decision,
which also mentions in verbatim Section 5 of the
Act, would go to show that the concerned employee
(writ petitioner) was appointed for a fixed period (11
months) by the Management. His services were,
therefore, brought to an end on the expiry of the
period by the Management by passing a termination
order which gave rise to filing of the writ petition by
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the concerned employee. The High Court allowed
the writ petition and set aside the termination
order. It was held that the writ petitioner was
regularly appointed in service on selection and
hence the termination order treating him to be
temporary was bad in law. The Management, felt
aggrieved of the order of High Court, came in appeal
to this Court. This Court by aforementioned order
allowed the Management’s appeal, set aside the
order of the High Court and while dismissing the
employee’s writ petition upheld the termination
order. It was held that the appointment of the writ
petitioner (employee) was governed by Section 5 of
the Act. It was further held that the appointment
was temporary in nature as is clear from the
appointment order itself and being for a fixed
period, it was terminable on the expiry of the period.
It was also held that since the permanent
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appointment was also governed by sub-sections (1)
and (2) of Section 5, it was for the Management to
initiate and fill up the post on permanent basis by
following the procedure prescribed in Section 5 of
the Act. It was also held that the sanction granted
by the competent authorities was confined to writ
petitioner’s temporary appointment and such grant
of sanction did not result in conferring any
permanent status on the writ petitioner.
25. Coming now to the facts of the case at hand,
we find remarkable similarity in the facts of the case
at hand and the one involved in Hindustan
Education Society’s Case (supra). In the case at
hand, we find from the two appointment orders
that the respondent No.1 was temporarily appointed
as Lecturer for one Session in the first instance and
on the expiry of the first period, his appointment
came to an end. The respondent No.2 then was
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appointed afresh second time, which period was
then extended up to 30.04.1998. We further find
from the advertisement that the post of Lecturer for
Geography was advertised as a part-time post.
26. The relevant extract from the appointment
orders dated 20.07.1996 (Annexure-2) and
21.07.1997 are quoted infra:
Order dated 20.07.1996
“Your appointment is temporary for one session from 1.8.96 to 30.4.97 period of one session. Your services are likely to be discontinued by giving one month’s notice on either side.”
Order dated 21.07.1997
“Your appointment is on temporary basis upto 30.04.1998. Your services are likely to be discontinued by giving one month’s notice on either side.”
27. We also find that the approval for the
aforementioned appointment was accorded by the
concerned authority vide letter dated 21.03.1998, as
it is without adding any more rights. Taking these
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facts in consideration and keeping in view the law
laid down in Hindustan Education Society’s case
(supra), we are of the view that appointment of the
respondent No. 1, whether first or second, since
inception remained a “temporary appointment as
part-time lecturer” for a fixed period and did not
result in “permanent appointment” on the post of
Lecturer. It also did not create any right in favour of
respondent No. 1 so as to enable him to claim
regularization in service.
28. We also find that it is not the case of
respondent No.1 and nor any finding was recorded
by the High Court that the Management had
followed the procedure prescribed under
sub-sections (1) and (2) of Section 5 for filling the
post against the permanent clear vacancy while
selecting the respondent No. 1. On the other hand,
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we find as mentioned above that the High Court
neither took note of the provisions of the Act much
less examined the question arising in the case in the
context of the provisions of the Act and nor
examined the question in the light of the law laid
down in Hindustan Education Society’s Case
(supra). We also do not find any material to hold
that the initial appointment of respondent No.1 was
against the permanent vacancy and that he was
appointed permanently by the Management by
following the procedure prescribed under
sub-sections (1) and (2) of Section 5 of the Act.
29. In our view, when the rights of the parties are
governed by the Act, then it is necessary for the
Court in the first instance to decide the rights in the
light of the mandate of the provisions of the Act. The
respondent No. 1 neither challenged the
constitutional validity of the Act and nor challenged
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the termination on the ground of mala fides
attributable against any particular authority. The
respondent No. 1 was also not able to point out any
arbitrariness in the impugned action to enable the
High Court to invoke Article 14 of the Constitution
for quashing the termination order. In these
circumstances, we are of the view that there was no
justification for the High Court to hold that the
respondent No. 1 was appointed on permanent
basis and that termination order was bad in law.
30. In view of foregoing discussion, we cannot
concur with the view taken by the High Court,
which, in our opinion, is not legally sustainable.
31. The appeal thus succeeds and is allowed.
Impugned order is set aside and that of the Tribunal
restored. As a result, the writ petition filed by
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respondent No.1 (employee) stands dismissed and
the termination order dated 31.03.1998 is upheld
as legal.
………...................................J.
[J. CHELAMESWAR]
…...……..................................J.
[ABHAY MANOHAR SAPRE] New Delhi; July 19, 2016
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