JUGALKISHORE BHAGWATIPRASAD SHUKLA Vs. NIRALA EDUCATION SOCIETY

JUDGEMENT

(1.) The petitioner/ Employee in person challenges the judgment and order dated 31/10/2007 of the School Tribunal, Nagpur, dismissing his appeal STN Appeal No. 345/1994. This is third round of controversy to this Court and on 7/12/2007 while issuing .Rule. in the matter, hearing was expedited. On 4/2/2008 matter was directed to be listed in the week commencing from 21/4/2008 for final hearing and on that day respondent No. 4 obtained adjournment for engaging Advocate. This Court granted that adjournment after imposing costs of Rs.1,000/-and thereafter matter was adjourned from time to time.

(2.) In appeal under Section 9 of Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter referred to as MEPS Act), filed by present petitioner challenge was to his oral termination by order dated 22/7/1992 as well as order of termination dated 1/4/1992. Petitioner was initially appointed on 1/7/1987 and he was having at that time qualification of M.Com, M.Phil with two years teaching experience. He was appointed as Part-time Lecturer in Commerce from the opening day of Junior College during Academic Session 1987-88. During that year only one section of XIth standard was started by respondent No. 1 on no grant basis and in next year XII standard was also started. According to petitioner though he had full-time workload, respondent No. 5 - Deputy Director had accorded approval only as part-time employee as one section of XIth standard was admitted to grant-in-aid during academic session 1988 -- 89. Respondent No. 4 Mr. Singh was also appointed along with petitioner but he was only M. Com. They were continued during academic session 1988 -- 89 without any termination and respondent No. 5 granted approval to their appointments as fulltime lecturers. Management then recommended both of them to vacation B.Ed. Course 1989 -- 1991. They cleared that examination in June 1991. It is the case of petitioner that though he was senior, being more qualified and more in age than respondent No. 4, he was appointed only for academic session 1991-92. While according approval respondent No. 5 granted it only for academic session 1991- 92 giving the reason of backlog. Post of petitioner became unreserved in view of government circular dated 22/9/1986 and as he completed five years of service against that post, he was entitled to continue further and his services were protected under government decision, Education and Employment Exchange department No.SSN- 1090/2263/middle/1/dated 22/7/1990. However, he was served with termination notice dated 1/4/1992 informing him of his termination from 1/5/1992 and petitioner then approched management and pointed out above mentioned government circulars. He also pointed out that the backlog was required to be filled in, respondent No. 4 has to go out, being junior to petitioner. Respondent No. 1 and 2 pointed out to School Tribunal that petitioner was not duly qualified at the time of his initial appointment and therefore he was appointed in purely temporary capacity on year to-year basis. He was junior to respondent No. 4 and his post never became unreserved. Lastly they contended that by his conduct and behaviour petitioner waived right, if any to that post. The school Tribunal framed following points and answered them as under: --

(3.) In this background, I have heard petitioner (appellant before School Tribunal) in person and Advocate S.S. Joshi for respondents 1 to 4. Shri Patel, learned AGP has appeared for respondent No. 5. Petitioner in person has urged that because of his continuous working with respondents No. 1 and 2, even if post is presumed to be reserved, it got de-reserved as per government decisions. School Tribunal, therefore, correctly found that his termination was illegal. He further states that delay in filing appeal was condoned by the School Tribunal itself and challenge to this delay condonation by respondent No. 1 and 2 was rejected by learned Single Judge of this Court as also by Hon Division Bench in L.P.A. Hence, finding against point number 3 about waiver as recorded by School Tribunal is inconsistent with its earlier judgment and order condoning delay. He relies upon various judgments to show how adjudication by School Tribunal on merits in his favour is justified. I find it unnecessary to make reference to these judgments as said conclusions in his favour have not been questioned by the respondents. Respondents No. 1 to 4 contend that issue of seniority qua respondent No. 4 cannot be reopened after several years and petitioner ought to have challenged appointment given to respondent No. 4 on 26/6/1991 and to himself on 10/7/1991 within reasonable time. Not only this but order of termination dated 1/4/1992 was also not challenged by him and he appeared for his selection again in response to advertisement for academic year 1992- 93. Respondents state that duly qualified and competent candidate belonging to reserved category i.e. present respondent number 3 came to be selected in that selection and he continues in employment with approval of respondent No. 5. After his non-selection, petitioner joined services with another employer and did not question alleged oral termination dated 22/7/1992 until after he lost such alternate employment. It is pointed out that while deciding L.P.A. No. 100 of 2007 on 16/8/2007, this Court left the question of waiver open for consideration by School Tribunal. It is further urged that having participated in selection process again and taken a chance of his selection therein, petitioner/ appellant cannot be permitted to turnaround and challenge earlier termination vide order dated 1/4/1992 or oral termination dated 22/7/1992. Advocate Joshi is placing reliance upon certain judgments for this purpose. Learned AGP has also supported the decision of the School Tribunal.