Bombay High Court: The petitioners challenged the order of a School Tribunal, whereby they were directed to reinstate the respondent/employee. Quashing the order of the Tribunal, the Bench of Rohit B. Deo, J. clarified that the advertisement of posts is not limited to posts that are reserved. It is necessary to advertise the posts in open category as well under the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. It stems from the constitutional rights provided under Article 14 and 16.
Factual Background:
The respondent was terminated from the petitioner institution on account of the appointment not being in accordance with Section 5 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977(“Act’’), not holding the eligibility education at the time of the appointment, and wilful absence from work. The School Tribunal rejected the above-mentioned grounds and directed for the reinstatement of the respondent in the petitioner school.
Observations and the Decision:
The High Court, primarily clarified on the requirement to advertise the post in open category under the Act. The Bench was in disagreement with the judgment laid in Nita Ramesh Danane v. Dombivali Mitra Mandal (2008) 8 SLR 72 (Bom) and that was relied on by the School Tribunal. Nita Ramesh had held that the requirement of advertisement applies to reserved posts and in case of appointments to the open category, there would be no requirement of issuing an advertisement.
The High Court, held that the pronouncement in Nita Ramesh is in opposition to the decision given by the Division Bench in Priyadarshni Education Trust v. Ratis Bano, 2007 SCC Online Bom 720. The rationale of issuing an advertisement while making appointments in open category is to ensure that every eligible person is aware of the vacancy available. Such an action will give effect to the concept of equality provided under Articles 14 and 16 of the Constitution of India. The judgment in Priyadarshni Education Trust had further laid those educational institutions are not at par with private employer even if initially the institution is unaided.
On the issue of acquiring eligibility qualification subsequent to appointment, the Bench said that ‘it is trite law that the employee must be eligible to hold the post as on the date of the appointment if not on the date of the advertisement, as the case may be’ and ‘an employee, who was not qualified as on the date of the appointment, cannot be treated as regularly appointed with effect from the date on which he acquired the eligibility qualification’.
The employee in the present case did not have the right to hold the post, and therefore was not in the position to make any grievance or pray for any relief, even if it is assumed that he was terminated. The High Court held the order of the School Tribunal to be erroneous and quashed the same. No order for any compensation was made, as the same is only permissible when the order of termination is held to be illegal or improper. [Late Sanjay Gandhi Shikshan v. The Deputy Director of Education, Writ Petition 2260 of 2010, decided on April 19, 2022]
Appearances:
For Petitioners: Mr Pushkar Deshpande
For Respondents: Ms T.H. Khan, AGP (R1), Mr A.Z. Jibhkate (R2).
