SHIVSHANKAR SHIVRAM SINGH Vs. PRAMILA R DWIVEDI

JUDGEMENT

(1.) RESPONDENT No. 1 was appointed as a part-time Craft teacher for the period November 13, 1984 upto April 30, 1985. She was continued as a Part-time teacher upto June 30, 1989. She was, thereafter appointed as a Probationer on 1st July 1989 as a full-time teacher for the period from 1st July 1989 to April 30, 1990. Her services were terminated on 30th April 1990 on the ground that her performance was not satisfactory. She was once again appointed on probation from June 30, 1990 upto 30th April 1991. Finally, her services were terminated vide Order dated 26th March 1991 with effect from 30th April 1991. Being aggrieved by the termination Order, respondent No. 1 preferred an Appeal to the Superintendent of Primary Schools. On 10th July 1991. Superintendent directed reinstatement. However, the Management contended that the Superintendent had no jurisdiction to pass such order of reinstatement and therefore, they did not implement the said Order. Consequently, respondent No. 1 filed Writ Petition No. 372 of 1992. On 7th December 1994, this Court directed respondent No. 1 to prefer an Appeal against the Order of termination dated 26th March 1991. Accordingly, respondent No. 1 preferred her Appeal to the Education Officer claiming that she had become permanent teacher which was denied by the Management. By the impuged Order passed by the Education Officer, the contention of respondent No. 1 was accepted and respondent No. 1 was directed to be reinstated with full back-wages. By the impugned Order, the Education Officer further directed that the amount of back-wages from the date of her termination to the date of her reinstatement will not be admissible for the grant and the Management was accordingly directed to pay full back-wages from their own Account. Being aggrieved by the said Order dated 31st January 1995 passed by the Education Officer, the Management preferred an Appeal to the Corporation. By the impugned Order dated 19th December 1996, Deputy Municipal Commissioner, Zone III, dismissed the Appeal. Being aggrieved by the two Orders passed by the Education Officer and the Deputy Municipal Commissioner, the Management has filed the present writ petition.

(2.) MR. Pandey, the learned Advocate appearing on behalf of the management contended that the Education Officer had no authority to direct the Management to reinstate the teacher. Mr. Pandey contended that in the present case, the Corporation grants financial aid to the School which does not empower the Education Officer to control the power to appoint a teacher or a power to dismiss a teacher in a Primary School. Mr. Pandey contended that the Education Officer erred in coming to the conclusion that respondent No. 1 was a permanent teacher. Mr. Pandey contended that each of the above letters clearly indicated that the teacher was appointed for a fixed period and on the expiry of the said period, she herself applied for fresh appointment and in the circumstances, respondent No. 1 was not entitled to claim a status of a permanent teacher. Mr. Pandey further contended that respondent No. 1 was appointed for a fixed duration and on the expiry of a stipulated period, her services came to an end by efflux of time. Mr. Pandey further contended that on facts of the present case, the decision of the Management to terminate the services of respondent No. 1 cannot be termed as mala fide. Mr. Pandey further contended that in the present matter, the respondent No. 1 was appointed for the period 1989 -1990 although her working was not found suitable. She was appointed on humanitarian consideration. Mr. Pandey further pointed out that the School was entitled to reorganize its own affairs and when Smt. Kaur was directed to be posted by the Education Department in the Hindi Section as a Craft teacher, the Management had no option, but to terminate the services of respondent No. 1 who was a temporary teacher. Mr. Pandey further contended that in the present matter even if respondent No. 1 is treated as a permanent teacher, the Management had a right to terminate the services of a permanent teacher under Rule 13 of Appendix VII which deals with terms of services of teacher in recognized and added Primary Schools in Greater Bombay. Mr. Pandey contended that under Rule 13, the services of permanent teacher may be terminated by the Management without assigning any reason. , giving twelve months salary i. e. Pay and allowances if any to the teacher if he /she has been in service of the School for ten years or more. Similarly, if the services of a permanent teacher, who has worked for less then ten years can be terminated by the Management, without assigning reasons on giving six monthss salary (Pay and allowances, if any ). Of course, this was subject to the Management informing the Department of the action taken by the Management to discharge the services of the permanent teacher and subject to the compliance of payment, as indicated by Rule 13. Mr. Pandey accordingly contended that in the present matter since the teacher was appointed on temporary basis, the Management was entitled to terminate her services on the expiry of the above period and that in any event, even if she is treated as permanent teacher, at the highest. Rule 13 was required to be complied with, which empowers the Management to terminate the services of a permanent teacher without assigning any reason whatsoever and in the circumstances, according to Mr. Pandey, looking at the matter from either of the two angles, the Management was entitled to terminate the services of the teacher and in the circumstances, the Education Officer was not entitled to direct the Management to reinstate respondent No. 1 together with back-wages, as mentioned in the impugned Order. Mr. Pandey also contended that if one goes to the Preamble of the Grant-in-Aid Code alongwith the provisions of Bombay Municipal Corporation Act, it was clear that the Grant-in-Aid Code was required to be framed because it as a duty of the Corporation to spread free and compulsory primary education amongst all the children of the compulsory School going age. Mr. Pandey contended that the Grant-in-Aid Code only lays down the conditions on the fulfillment of which the Management was entitled to receive aid from the Bombay Municipal Corporation. Mr. Pandey, therefore, contended that the Education Officer had no authority, in the sense of judicial authority, empowering him to direct the Management to reinstate the teacher together with full back-wages, as is being done by any other Tribunal like Industrial Court or the School Tribunal which has been expressly given power under the Act and the Rules to reinstate, in appropriate cases, an employee, together with all back-wages and continuity or service. Mr. Pandey accordingly contended vehemently that in the present case, the Education Officer erred in coming to the conclusion that respondent No. 1 was entitled to the status of permanent teacher. Mr. Pandey contends that even assuming for the sake of argument that the said termination Order was illegal and bad in law, the consequences are mentioned in Rule 21 of the said Appendix VII to the Grant-in-Aid Code. Mr. Pandey, therefore, contended that the consequences are that if the Management refuses to comply with the directions issued by the Education Officer, then pursuant to Rule 21, the Corporation is entitled to stop the Grant or to withdraw the recognition, but it cannot direct the Management to reinstate a teacher, because there is no such power given to the Education Officer to direct reinstatement with or without back-wages. Mr. Pandey therefore, contended that if the Order of the Education Officer is upheld then there will be no distinction left between the Tribunal which is appointed pursuant to the powers given to it under the provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 an Education Officer who is appointed by the Corporation under the provisions of the Bombay Municipal Corporation Act who is only required to see that the conditions of the Grant are fully complied with in the circumstances. Mr. Pandey contended that the Education Officer is not empowered to direct the School to reinstate the teacher with full back-wages. Under the circumstances, he contends that the impugned Orders are liable to be set aside.

(3.) MR. Deodhar, the learned Counsel appearing on behalf of the respondent No. 1, however, contended that under the Grant-in-Aid Code special Rules are laid down dealing with conditions of recognition. Mr. Deodhar invited my attention in particular to Rule 5 which lays down that while granting recognition, the Education Officer is required to consider whether the teaching staff is adequate and well qualified and further, he is required to consider as to whether there is any frequent changes in the teaching staff. Mr. Deodhar further contended that under Rule 5 (vii) the Pay Scales and other conditions of service have been prescribed which are required to be followed and if those service conditions are flouted, then the Education Department is certainly entitled to take action by issuing appropriate directions to the Management. Mr. Deodhar accordingly contended that once the conditions of service are duly approved by the Education Department, the Management is required to follow those conditions and if there is breach of those conditions, the Education Officer is certainly entitled to issue appropriate directions including the directions for reinstatement of teacher who has been wrongly terminated from service.