Full Judgment Text
2007:BHC-AS:18081
vss
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3349 OF 1998 WRIT PETITION NO.3349 OF 1998 WRIT PETITION NO.3349 OF 1998
Girija Pandey
residing at 504, Tower No.1
Saket, Thane (W) ... Petitioner
V/s.
1. Surya Educational Society & Ors. ... Respondents
Mr.Susheel Mahadeshwar for Petitioner
Ms.Gauri Godse for Respondent Nos.1, 2 & 3
CORAM: SMT.NISHITA SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. MHATRE, J.
DATED: SEPTEMBER 27, 2007 SEPTEMBER 27, 2007 SEPTEMBER 27, 2007
ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT:
. The Petitioner challenges the order of the
School Tribunal dated 18.12.1996. By this order, the
School Tribunal has dismissed the appeal both on the
grounds of limitation and on merits.
2. The case of the petitioner is that she was
appointed as an Assistant Teacher in the primary section
of the school but no appointment order was issued to
her. The petitioner claims that her services were
terminated on 15.6.1992 orally by the respondents. An
appeal was filed by her on 17.7.1992 contending that her
services had been illegally terminated by the
respondents. In her appeal, the petitioner had stated
that she was appointed to the school on a clear
permanent vacancy. She has stated that she was paid a
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salary of Rs.300/- per month. According to the
petitioner, she was suffering from jaundice from
14.12.1991. She had submitted medical certificates on
31.1.1992, 5.3.1992 by registered A.D. which were
received by the management. A fitness certificate was
submitted on 21.5.1992. When the petitioner reported
for duty on 15.6.1992, she was handed over an experience
certificate and was informed that she was no longer
required in service. The appellant has tried to explain
the delay caused in filing the appeal by stating that
she had approached the Deputy Director of Education in
July 1992, before filing the appeal. According to her,
the delay in preferring the appeal was nominal and,
therefore, the Tribunal ought to have condoned the
delay.
3. In their written statement, the respondent Nos.1
to 3 had contended that the petitioner was appointed as
a teacher in the secondary section on a temporary basis.
She was also required to work in the primary section
whenever no teacher was available in that section. The
respondents have also pleaded that the petitioner had
abandoned her services on 14.12.1991 and in fact her
experience certificate which was written out by her
husband indicates that she had left the services of the
respondents from 30.4.1992. The respondents have stated
in their written statement that they called upon the
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petitioner by their letters dated 27.2.1992, 6.1.1992
and 27.1.1992 to report for work. These letters were
sent under certificate of posting. According to the
respondents, the petitioner continued to remain absent
without intimating them the reason for her absence. The
petitioner’s services came to an end, according to the
respondents, because she abandoned her services. The
respondents have however admitted receiving the medical
certificates dated 5.2.1992 and 29.1.1992 indicating
that the petitioner was suffering from jaundice.
4. Admittedly, no documents were produced on record
by the respondents to indicate that the petitioner has
been appointed in a temporary vacancy and not a clear
permanent vacancy as alleged in the appeal. The
respondents have admittedly not issued any appointment
letter to the petitioner. The only reason advanced by
the respondents for not issuing such a letter is that
the petitioner was a temporary employee and was required
to work as and when work was available.
5. The School Tribunal has found that the
petitioner had not explained the delay in filing the
appeal sufficiently and, therefore, held that the delay
could not be condoned. However, the Tribunal has dealt
with the case on merits as well. The Tribunal has held
that the petitioner was a temporary employee and that
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she had abandoned her service with the respondent. The
Tribunal has based its findings or the fact that the
petitioner had obtained an experience certificate on
30.4.1992 indicating she was no longer in service from
that date. According to the Tribunal, therefore, the
period of limitation would run from 14.12.1991 when she
stopped reported for work. The Tribunal has also held
even if one considers the date of cessation of
employment to be 30.4.1992, i.e. the date of the
experience certificate, it would indicate that the
petitioner had not satisfactorily explained the delay
from that date till the filing of the appeal on
15.7.1992. The Tribunal was not impressed by the
Petitioner’s contention that she was seeking redressal
of her grievance with the Deputy Education Officer and
held that the appeal is barred by limitation.
5. The learned Advocate appearing for the
petitioner submits that the petitioner admittedly was
working from 12.6.1989 till 14.12.1991. He submits that
the petitioner has averred in her appeal that she was
appointed against a clear permanent vacancy and that is
the only requirement of section 5 of the MEPS Act under
which all appointments made to fill a permanent vacancy
are to be considered to be on probation for two years.
Under section 5(2), a probationer who has been in
continuous service for two years is deemed to be
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permanent. The learned advocate submits that once the
petitioner is a permanent employee because of the
deeming provision contained in section 5(2), the
management could not have presumed that she had
abandoned her service within a period of six months of
absence. He points out Rule 16(3) of the MEPS Rules
under which it can be presumed that an employee has
abandoned his service if he is absent for more than
three years. The learned advocate submits that the
Tribunal has erred in not condoning the delay in
approaching the School Tribunal. He relies on the
judgments of this Court in Maria Z. Concescio v/s. The
Principal, 1994 II CLR 984 and 1994 II CLR 984 1994 II CLR 984 Narendra Keshav Mahajan
v. The Secretary, Private Education Society Khasbag,
Kolhapur & Ors. , 1993 II CLR 419 1993 II CLR 419 in support of his 1993 II CLR 419
contention that the delay of a very limited period ought
to be condoned. As regards the letters issued by the
management to the petitioner under certificate of
posting the learned advocate points out the judgment of
the Supreme Court in the case of Shiv Kumar & Ors. v/s.
State of Haryana & Ors. , 1994 II LLN 425 1994 II LLN 425 where the 1994 II LLN 425
Supreme Court has observed that it would not be safe to
decide the controversy before it on the basis of the
certificates of posting produced before it as "it is not
difficult to get such postal seals at any point of
time". According to the learned advocate, the letters
have not been received by the petitioner and no reliance
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can be placed on such letters which were sent under
certificate of posting.
6. A perusal of the order of the School Tribunal
indicates that the delay has not been condoned by the
Tribunal on the ground that there is no explanation for
not filing the appeal within 30 days after the
experience certificate was issued on 30.4.1992. The
Tribunal has observed that except a copy of the letter
dated 6.7.1992 addressed to the Director of Education,
the petitioner had not produced any evidence to indicate
that she was pursuing her remedy before the Education
Officer. In my view, this observation of the Tribunal
that the petitioner had not satisfactorily explained the
delay is incorrect. Assuming that there has been a
delay, the delay would be according to the Tribunal from
1.6.1992 till the filing of the appeal on 17.7.1992
which would be approximately 1.1/2 months. In the case
of Maria Z. Concescio v/s. The Principal (supra), the
Division Bench has observed thus:
3. ... In our judgment, taking into
consideration of the fact that the petitioner
was an Assistant Teacher, the Presiding Officer
should have exercised the jurisdiction to
condone the delay by taking lenient view. It is
advisable that the party should have a feeling
that the grievance is considered and not thrown
out on technicalities. In these circumstances,
in our judgment, it is necessary to set aside
the order passed by the Presiding Officer and
remit the proceeding back to the School Tribunal
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for deciding the appeal on merits."
7. The delay in that case before the Division bench
was of more than six months and the Court has condoned
the delay. In the case of Narendra Keshav Mahajan
(supra) also, the Division Bench has observed that when
steps are taken to seek a remedy elsewhere and there is
a delay in filing an appeal under the MEPS Act,
generally such a delay should be condoned. In the
present case, I am of the view that the Tribunal has
erred in not condoning the delay. The delay is only of
1.1/2 months. There is an explanation advanced by the
petitioner that she was seeking redressal of her
grievance before the Education Officer. In this view of
the matter, the delay ought to have been condoned.
8. On merits, in my view, the Tribunal has erred
completely. There is a contention in the appeal that
the Petitioner had worked from 12.6.1989 to 14.6.1991,
when she fell ill. This has not been denied by the
management. However, according to the management, the
appointment was only on a temporary basis. The
petitioner in her appeal has contended specifically that
she was appointed against the clear permanent vacancy.
There is no denial that in the written statement that
such a permanent vacancy existed. The management ought
to have produced evidence on record to indicate that the
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appointment was temporary and not against a permanent
clear vacancy. No such evidence has admittedly been
produced before the Tribunal. Therefore, the Tribunal
was in error in concluding that the appointment was not
against a clear permanent vacancy.
9. Admittedly, the petitioner worked for more than
two years on the clear permanent vacancy i.e. from
12.6.1989 to 14.6.1991. Therefore, in view of section
5(2) r/w 5(3) of the MEPS Act, she is deemed to have
been made permanent after two years. In such
circumstances, the management could not have assumed
that she abandoned her service without waiting for three
years as required under Rule 16(3) of the MEPS Rules.
Thus, the presumed abandonment of service by the
petitioner on and from 14.12.1991 is incorrect.
10. In the result, the petition succeeds. Rule made
absolute. No order as to costs.
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vss
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3349 OF 1998 WRIT PETITION NO.3349 OF 1998 WRIT PETITION NO.3349 OF 1998
Girija Pandey
residing at 504, Tower No.1
Saket, Thane (W) ... Petitioner
V/s.
1. Surya Educational Society & Ors. ... Respondents
Mr.Susheel Mahadeshwar for Petitioner
Ms.Gauri Godse for Respondent Nos.1, 2 & 3
CORAM: SMT.NISHITA SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. MHATRE, J.
DATED: SEPTEMBER 27, 2007 SEPTEMBER 27, 2007 SEPTEMBER 27, 2007
ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT:
. The Petitioner challenges the order of the
School Tribunal dated 18.12.1996. By this order, the
School Tribunal has dismissed the appeal both on the
grounds of limitation and on merits.
2. The case of the petitioner is that she was
appointed as an Assistant Teacher in the primary section
of the school but no appointment order was issued to
her. The petitioner claims that her services were
terminated on 15.6.1992 orally by the respondents. An
appeal was filed by her on 17.7.1992 contending that her
services had been illegally terminated by the
respondents. In her appeal, the petitioner had stated
that she was appointed to the school on a clear
permanent vacancy. She has stated that she was paid a
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: 2 :
salary of Rs.300/- per month. According to the
petitioner, she was suffering from jaundice from
14.12.1991. She had submitted medical certificates on
31.1.1992, 5.3.1992 by registered A.D. which were
received by the management. A fitness certificate was
submitted on 21.5.1992. When the petitioner reported
for duty on 15.6.1992, she was handed over an experience
certificate and was informed that she was no longer
required in service. The appellant has tried to explain
the delay caused in filing the appeal by stating that
she had approached the Deputy Director of Education in
July 1992, before filing the appeal. According to her,
the delay in preferring the appeal was nominal and,
therefore, the Tribunal ought to have condoned the
delay.
3. In their written statement, the respondent Nos.1
to 3 had contended that the petitioner was appointed as
a teacher in the secondary section on a temporary basis.
She was also required to work in the primary section
whenever no teacher was available in that section. The
respondents have also pleaded that the petitioner had
abandoned her services on 14.12.1991 and in fact her
experience certificate which was written out by her
husband indicates that she had left the services of the
respondents from 30.4.1992. The respondents have stated
in their written statement that they called upon the
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petitioner by their letters dated 27.2.1992, 6.1.1992
and 27.1.1992 to report for work. These letters were
sent under certificate of posting. According to the
respondents, the petitioner continued to remain absent
without intimating them the reason for her absence. The
petitioner’s services came to an end, according to the
respondents, because she abandoned her services. The
respondents have however admitted receiving the medical
certificates dated 5.2.1992 and 29.1.1992 indicating
that the petitioner was suffering from jaundice.
4. Admittedly, no documents were produced on record
by the respondents to indicate that the petitioner has
been appointed in a temporary vacancy and not a clear
permanent vacancy as alleged in the appeal. The
respondents have admittedly not issued any appointment
letter to the petitioner. The only reason advanced by
the respondents for not issuing such a letter is that
the petitioner was a temporary employee and was required
to work as and when work was available.
5. The School Tribunal has found that the
petitioner had not explained the delay in filing the
appeal sufficiently and, therefore, held that the delay
could not be condoned. However, the Tribunal has dealt
with the case on merits as well. The Tribunal has held
that the petitioner was a temporary employee and that
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she had abandoned her service with the respondent. The
Tribunal has based its findings or the fact that the
petitioner had obtained an experience certificate on
30.4.1992 indicating she was no longer in service from
that date. According to the Tribunal, therefore, the
period of limitation would run from 14.12.1991 when she
stopped reported for work. The Tribunal has also held
even if one considers the date of cessation of
employment to be 30.4.1992, i.e. the date of the
experience certificate, it would indicate that the
petitioner had not satisfactorily explained the delay
from that date till the filing of the appeal on
15.7.1992. The Tribunal was not impressed by the
Petitioner’s contention that she was seeking redressal
of her grievance with the Deputy Education Officer and
held that the appeal is barred by limitation.
5. The learned Advocate appearing for the
petitioner submits that the petitioner admittedly was
working from 12.6.1989 till 14.12.1991. He submits that
the petitioner has averred in her appeal that she was
appointed against a clear permanent vacancy and that is
the only requirement of section 5 of the MEPS Act under
which all appointments made to fill a permanent vacancy
are to be considered to be on probation for two years.
Under section 5(2), a probationer who has been in
continuous service for two years is deemed to be
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: 5 :
permanent. The learned advocate submits that once the
petitioner is a permanent employee because of the
deeming provision contained in section 5(2), the
management could not have presumed that she had
abandoned her service within a period of six months of
absence. He points out Rule 16(3) of the MEPS Rules
under which it can be presumed that an employee has
abandoned his service if he is absent for more than
three years. The learned advocate submits that the
Tribunal has erred in not condoning the delay in
approaching the School Tribunal. He relies on the
judgments of this Court in Maria Z. Concescio v/s. The
Principal, 1994 II CLR 984 and 1994 II CLR 984 1994 II CLR 984 Narendra Keshav Mahajan
v. The Secretary, Private Education Society Khasbag,
Kolhapur & Ors. , 1993 II CLR 419 1993 II CLR 419 in support of his 1993 II CLR 419
contention that the delay of a very limited period ought
to be condoned. As regards the letters issued by the
management to the petitioner under certificate of
posting the learned advocate points out the judgment of
the Supreme Court in the case of Shiv Kumar & Ors. v/s.
State of Haryana & Ors. , 1994 II LLN 425 1994 II LLN 425 where the 1994 II LLN 425
Supreme Court has observed that it would not be safe to
decide the controversy before it on the basis of the
certificates of posting produced before it as "it is not
difficult to get such postal seals at any point of
time". According to the learned advocate, the letters
have not been received by the petitioner and no reliance
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can be placed on such letters which were sent under
certificate of posting.
6. A perusal of the order of the School Tribunal
indicates that the delay has not been condoned by the
Tribunal on the ground that there is no explanation for
not filing the appeal within 30 days after the
experience certificate was issued on 30.4.1992. The
Tribunal has observed that except a copy of the letter
dated 6.7.1992 addressed to the Director of Education,
the petitioner had not produced any evidence to indicate
that she was pursuing her remedy before the Education
Officer. In my view, this observation of the Tribunal
that the petitioner had not satisfactorily explained the
delay is incorrect. Assuming that there has been a
delay, the delay would be according to the Tribunal from
1.6.1992 till the filing of the appeal on 17.7.1992
which would be approximately 1.1/2 months. In the case
of Maria Z. Concescio v/s. The Principal (supra), the
Division Bench has observed thus:
3. ... In our judgment, taking into
consideration of the fact that the petitioner
was an Assistant Teacher, the Presiding Officer
should have exercised the jurisdiction to
condone the delay by taking lenient view. It is
advisable that the party should have a feeling
that the grievance is considered and not thrown
out on technicalities. In these circumstances,
in our judgment, it is necessary to set aside
the order passed by the Presiding Officer and
remit the proceeding back to the School Tribunal
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for deciding the appeal on merits."
7. The delay in that case before the Division bench
was of more than six months and the Court has condoned
the delay. In the case of Narendra Keshav Mahajan
(supra) also, the Division Bench has observed that when
steps are taken to seek a remedy elsewhere and there is
a delay in filing an appeal under the MEPS Act,
generally such a delay should be condoned. In the
present case, I am of the view that the Tribunal has
erred in not condoning the delay. The delay is only of
1.1/2 months. There is an explanation advanced by the
petitioner that she was seeking redressal of her
grievance before the Education Officer. In this view of
the matter, the delay ought to have been condoned.
8. On merits, in my view, the Tribunal has erred
completely. There is a contention in the appeal that
the Petitioner had worked from 12.6.1989 to 14.6.1991,
when she fell ill. This has not been denied by the
management. However, according to the management, the
appointment was only on a temporary basis. The
petitioner in her appeal has contended specifically that
she was appointed against the clear permanent vacancy.
There is no denial that in the written statement that
such a permanent vacancy existed. The management ought
to have produced evidence on record to indicate that the
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appointment was temporary and not against a permanent
clear vacancy. No such evidence has admittedly been
produced before the Tribunal. Therefore, the Tribunal
was in error in concluding that the appointment was not
against a clear permanent vacancy.
9. Admittedly, the petitioner worked for more than
two years on the clear permanent vacancy i.e. from
12.6.1989 to 14.6.1991. Therefore, in view of section
5(2) r/w 5(3) of the MEPS Act, she is deemed to have
been made permanent after two years. In such
circumstances, the management could not have assumed
that she abandoned her service without waiting for three
years as required under Rule 16(3) of the MEPS Rules.
Thus, the presumed abandonment of service by the
petitioner on and from 14.12.1991 is incorrect.
10. In the result, the petition succeeds. Rule made
absolute. No order as to costs.
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