LAW FOR ALL

Monday, June 3, 2013

TEMPORARY APPOINTMENTS IN SCHOOLS =“Would it be open to the School Tribunal to hold that an employee would be deemed to be on probation within the meaning of Section 5(2) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 on the ground that the appointment was made in a clear and permanent vacancy, notwithstanding the fact that the letter of appointment specifically stipulated that the appointment has been made in a temporary capacity?” = We hold that it is not open to the School Tribunal to assume as of fact that the appointment made against a clear and permanent vacancy is deemed to be on probation, within the meaning of Section 5(2) of the Act. The School Tribunal cannot disregard the terms and conditions of the letter of appointment, if it expressly provides that the appointment is on temporary basis, for a limited term.

reported/published in http://bombayhighcourt.nic.in/judgements/2013/&fname=OSWP274005.
Bombay High Court
wp.315.2006+Full Bench.judgemnt.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
O.O.C.J. / CIVIL APPELLATE SIDE
WRIT PETITION (OS) NO. 315 OF 2006
WITH
NOTICE OF MOTION NO. 175 OF 2012
RAMKRISHNA CHAUHAN,
Residing at Bihari Chawl,
Behind Mukesh Medical Stores,
Ganesh Nagar, Kandivli (West)
Mumbai – 400067 : PETITIONER
VERSUS
1. SETH D. M. HIGH SCHOOL,
through the Principal,
10th Road, Daulatnagar,
Borivli (E), Mumbai 400066
2. DEPUTY DIRECTOR OF EDUCATION,
Jawahar Bhavan, Near Charni Road,
Mumbai – 400004
3. THE BHARAT JATIYA SANGH,
through its Chairman,
10th Road, Daulatnagar,
Borivli (E), Mumbai 400066
4. STATE OF MAHARASHTRA,
through the Department of
Education and Employment,
Mantralaya Annex,
Mumbai 400032 : RESPONDENTS
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WITH
CIVIL WRIT PETITION NO. 7482 OF 2006
WITH
CIVIL APPLICATION NO. 467 OF 2009
AND
CIVIL APPLICATION NO. 63 OF 2012
1. THE CHAIRMAN,
Shri. Chhatrapati Shivaji
Shikshan Prasarak Sanstha
Sadhana Society, Hadapsar,
Pune – 411028
2. SHRI R. P. JAGTAP,
Chairman, Shri. Chhatrapati
Shivaji Shikshan Prasarak
Sanstha Sadhana Society,
Hadapsar, Pune – 411028 : PETITIONERS
VERSUS
1. STATE OF MAHARASHTRA
2. EDUCATION OFFICER (PRIMARY)
Zilla Parishad, Pune.
3. ADMINISTRATIVE OFFICER,
Municipal School Board, Pune
4. SMT. SHARDA VITHAL MEMANE,
Age 25 years, Occupation – Nil,
R/at Pankat Plaza, C/o. D. M. Yadav,
Pune Saswad Road,
Near Satyapuram Bus Stop,
Satavwadi, Hadapsar, Pune – 28
5. MRS. KAMBLE
Adult, Occupation – Service,
R/at A/At: C/o. Mahatma Phule
Prathmik Vidya Mandir,
Hadapsar, Pune – 28
(deleted as per order dated 12.10.2007) : RESPONDENTS
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WITH
CIVIL WRIT PETITION NO. 4683 OF 2005
ARCHANA VASANT PATIL
C/o. Dattaram A. Devulkar,
Room No. 26, Shanti Nivas,
Near Ashok Van, Sai Baba Mandir,
Dahisar (E), Mumbai – 400068 : PETITIONER
VERSUS
1. WARE EDUCATIONAL TRUST,
through its Chairman/President/
Secretary, having their office at
C/o. Smt. Ashabai Tulsiram Ware
High School, Malad (E),
Mumbai – 400067
2. SMT. ASHABAI TULSIRAM WARE
HIGH SCHOOL, through its H. M.
Sunil Sadan, Jai Bhim Nagar,
Gokuldham, General A. K.
Vaidya Marg, Malad (E),
Mumbai – 400067
3. EDUCATION INSPECTOR (SECONDARY)
Greater Mumbai, West Zone,
Ismail Yusuf College Compound,
Jogeshwari, Mumbai – 400060
4. SMT. ALKA PATIL
C/o. Smt. Ashabai Tulsiram Ware
High School, Malad (E),
Mumbai – 400060
5. STATE OF MAHARASHTRA
through Secretary,
Department of Education,
Mantralaya, Mumbai – 32 : RESPONDENTS
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WITH
CIVIL WRIT PETITION NO. 4686 OF 2005
SANJAY NARAYAN SONAR
Samrat Colony, Nagindas Pada,
Virar Road, Nala Sopara (E),
Dist. Thane : PETITIONER
VERSUS
1. WARE EDUCATIONAL TRUST,
through its Chairman/President/
Secretary, having their office at
C/o. Smt. Ashabai Tulsiram Ware
High School, Malad (E),
Mumbai – 400067
2. SMT. ASHABAI TULSIRAM WARE
HIGH SCHOOL, through its H. M.
Sunil Sadan, Jai Bhim Nagar,
Gokuldham, General A. K.
Vaidya Marg, Malad (E),
Mumbai – 400067
3. EDUCATION INSPECTOR (SECONDARY)
Greater Mumbai, West Zone,
Ismail Yusuf College Compound,
Jogeshwari, Mumbai – 400060
4. PATIL SATISH B.
C/o. Suresh Eashwar Trimanke
New D'souza Chawl, Room No. 2,
Safed Pool, Pipe Line,
Kurla, Mumbai
5. STATE OF MAHARASHTRA
through Secretary,
Department of Education,
Mantralaya, Mumbai – 32 : RESPONDENTS
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WITH
CIVIL WRIT PETITION NO. 4687 of 2005
PRAKASH BHANUDAS PATIL,
Age 38 years, C/o. Dattaram A.
Devulkar, Room No. 26,
Shanti Nivas, Near Ashok Van,
Sai Baba Mandir, Dahisar (E),
Mumbai – 400068 : PETITIONER
VERSUS
1. WARE EDUCATIONAL TRUST,
through its Chairman/President/
Secretary, having their office at
C/o. Smt. Ashabai Tulsiram Ware
High School, Malad (E),
Mumbai – 400067
2. SMT. ASHABAI TULSIRAM WARE
HIGH SCHOOL, through its H. M.
Sunil Sadan, Jai Bhim Nagar,
Gokuldham, General A. K.
Vaidya Marg, Malad (E),
Mumbai – 400067
3. EDUCATION INSPECTOR (SECONDARY)
Greater Mumbai, West Zone,
Ismail Yusuf College Compound,
Jogeshwari, Mumbai – 400060
4. PATIL MANOJKUMAR S.
C/o. Ashabai Tulshiram Ware
High School, Malad (E),
Mumbai 400067
5. STATE OF MAHARASHTRA
through Secretary,
Department of Education,
Mantralaya, Mumbai – 32 : RESPONDENTS
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WITH
CIVIL WRIT PETITION NO. 8472 OF 2006
1. BHARTIYA GYANVARDHINI
SABHA,
Smt. Godavari Hindi Vidyalaya
Compound, Pune – Mumbai Road,
Chinchwad, Pune 411019
by their Chairman/
General Secretary
2. BHARTIYA GYANVARDHINI SABHAS
SHRI KANTILAL KHINWASARA D.Ed.
COLLEGE (HINDI MEDIUM),
Laxman Nagar, Thergaon,
Pune – 411033
by their Principal : PETITIONERS
VERSUS
1. STATE OF MAHARASHTRA
2. DEPUTY DIRECTOR OF EDUCATION,
Pune Region, Pune 17,
Dr. Ambedkar Road, Pune – 411001
3. MR. SUHAS NIVRUTTI TADWALKAR,
Age about 33 years, Occupation Nil
R/at 17/2, Ekta Colony,
Ganeshnagar, Thergaon,
Pune – 4110033
4. BHARTIYA GYANVARDHINI SABHA
Smt. Godavari Hindi Vidyalaya
Compound, Pune Mumbai Road,
Chinchwad, Pune – 19
by their General Secretary : RESPONDENTS
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WITH
CIVIL WRIT PETITION NO. 6972 OF 2003
1. M/S. INDIAN EDUCATION
SOCIETY,
A Society registered under the
Bombay Public Trust Act, 1949,
and also a Society registered
under the Societies Registration
Act, 1860, having its registered
office at Raja Shivaji Vidyalay
Sankul, Hindu Colony,
Dadar (East), Mumbai 400040
2. SMT. K. G. MHATRE
Head Mistress,
I. E. S. Girls High School No. 2,
Now known as “I. E. S. Digambar
Patkar Vidyalaya”,
Hindu Colony, Dadar (East),
Mumbai – 400014 : PETITIONERS
VERSUS
1. MR. GULAB DHANJI MORE
Residing at C/o. Shankar Hanumant
Pawar, Sumit Apartment, Plot No. 3,
Bhidewadi, Kansai, Ambarnath (E),
Dist. Thane
2. DEPUTY DIRECTOR OF EDUCATION
Govt. of Maharashtra,
Mumbai – 400003
3. THE EDUCATION INSPECTOR
Govt. of Maharashtra
1 North, Chembur,
Mumbai – 400071
4. STATE OF MAHARASHTRA
Mumbai : RESPONDENTS
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Mr. Mihir Desai, for the Petitioners in WP/315/2006.
Mr. A. G. Kothari, for Respondent Nos. 1 and 3 in WP/315/2006.
Ms. Sindha Shridharan, AGP, for Respondent Nos. 2 and 4 in
WP/315/2006.
Mr. Raju Moray, i/b. Mr. Mandar Limaye, for Respondent Nos. 2
and 4 in WP/6972/2003.
Mr. Sunil Dighe, for the Petitioners in WP/4683/2005,
WP/4686/2005 and WP/4687/2005.
Mr. Jaydeep Deo, AGP, for Respondent State in Appellate side
matters.
Mr. Sanjeev J. Rairkar, for Respondent No. 3 in WP/7482/2006.
Mr. Santosh Jagtap, for Respondent No. 1 in WP/6972/2003.
Mr. A. M. Joshi, for the Petitioners in WP/7482/2006 and
WP/8472/2006.
Mr. Suresh Kumar Panicker, for Respondent Nos. 1 and 2 in
WP/4683/2005, WP/4686/2005 and WP/4687/2005.
CORAM: A.M.KHANWILKAR,
RANJIT MORE &
K.K.TATED, JJ.
Judgment Reserved on : JANUARY 22, 2013
Judgment Pronounced on : MARCH 12, 2013
JUDGMENT : (Per A.M.KHANWILKAR, J.)
This Full Bench has been constituted by the learned
Chief Justice in the light of reference made by the learned Single
Judge of this Court Brother Justice Dr. D. Y. Chandrachud, in Writ
Petition No. 315 of 2006, on 22nd January, 2007, by a speaking
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order.
His Lordship in the reference order has adverted to the two
line of decisions of this Court and also to the decisions of the Apex
Court.
His Lordship, has opined that in view of the law laid down
by the Apex Court, in Hindustan Education Society and Ors. Vs. S. K
Kaleem S. K. Gulam Nabi and ors.1
and the subsequent decisions in
the case of Bhartiya Gramin P. Sanstha vs. Vijay Kumar and Co.2
and
Kalpataru Vidya Samastha vs. S.B. Gupta3
, it may not be within the
jurisdiction of the Tribunal to hold that an employee, who has
been appointed on temporary basis, to be deemed to be appointed
on probation, on the ground that there was a clear and permanent
vacancy.
Further, even the Division Bench of this Court, in the case
of Venkatraman Shankar vs. Jasbir Kaur Anand and Ors4
, has taken
the same view.
On the other hand, the exposition in two decisions
of Learned Single Judge of this Court, in the case of Shri. Sairam
Education Trust vs. Lalsaheb More and Anr.5
and in the case of
Shikshan Prasarak Mandal vs. Presiding Officer, School Tribunal6
, is
contrary to the principle enunciated by the Apex Court as well as
1) 1997 (3) Supreme 292
2) (2002) 6 SCC 707 = 2003 (1) Mh. LJ 563
3 (2005) 7 SCC 524
4) Decided on 6th August, 1999 in Review Petition No. 16 of 1997, in Appeal No. 273 of 1997, in
Writ Petition No. 2799 of 1990
5) Decided on 25th August, 2005 in Writ Petition No. 902 of 1993
6) 2005 (6) BCR 311
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the Division Bench of this Court. In the reference order, other
decisions adverted to are in the case of National Education Society’s
High School vs. Lulomool Monachary7
, Anil Vasant Chaudhari vs.
People’s Education Society8
, Kazi Safiruddin Muzaffaruddin vs. The
State of Maharashtra and Ors.
9
, Kazi Safiruddin Muzaffaruddin vs.
The State of Maharashtra10, Siddharth Charitable Trust vs.
Pandurang Maruti Dhumal11
, Mathuradas Mohta College of Science,
Nagpur vs. R. T. Borkar and Ors.12
, Kalpataru Vidya Samasthe (R)
and Ors. Vs. S. B. Gupta and Ors.
13
.
2) Accordingly, the learned Single Judge directed the
Registry to place the papers before the Learned Chief Justice, in
order to constitute Larger Bench to answer the following question:
“Would it be open to the School Tribunal to hold that
an employee would be deemed to be on probation
within the meaning of Section 5(2) of the
Maharashtra Employees of Private Schools
(Conditions of Service) Regulation Act, 1977 on the
ground that the appointment was made in a clear and
permanent vacancy, notwithstanding the fact that the
7) Decided on 27th March, 1987 in Writ Petition No. 1751 of 1986 = 1987(2) Bom.C.R. 521
8) Decided on 5th August, 1987 in Writ Petition No. 4714 of 1987
9) Decided on 28th November, 2005 in Writ Petition No. 2668 of 2005
10) Decided on 18th April, 2006 in Appeal No. 228 of 2006 arising out of Writ Petition No. 2268
of 2005
11) Decided on 7th July, 1999 in Writ Petition No. 3488 of 1999 (This decision has been upheld
by the Supreme Court in SLP (C) No.14795 of 1999 decided on 22nd November, 1999)
12) 1997 (2) Mh. L. J. 790 = 1997 (1) ALL. M.R. 149
13) 2005(7) SCC 524
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letter of appointment specifically stipulated that the
appointment has been made in a temporary
capacity?”
3) The brief facts, which have given rise to the filing of
the said Writ Petition, in which reference to Larger Bench has been
made, can be delineated as under:
The Writ Petitioner possesses M.A., B.Ed. Degrees. He
was fully qualified to teach in secondary school. He was appointed
in respondent No. 1 school, as a full time Assistant Teacher from
21st July, 1999. The initial appointment order indicated that he
was appointed only for the academic year, though the appointment
was a7gainst a clear, open and permanent vacancy. The
appointment order dated 17th July, 1997 was made over to the
Petitioner on 30th March, 1998. On the same day, he was issued a
letter of termination, terminating his service w.e.f. 30th April, 1998.
The Petitioner was then continued as an Assistant Teacher in the
following academic year. However, he was not given any formal
appointment letter in that regard. The Petitioner was issued a
letter of termination, terminating his service w.e.f. 30th April, 1999.
Again, in the next academic year (19992000), the Petitioner was
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continued as an Assistant Teacher, without issuing any fresh
appointment order. At the end of the academic year, on 27th
March, 2000, the Petitioner was issued a letter, terminating his
service w.e.f. 29th April, 2000. The Petitioner, therefore, preferred
appeal. During the pendency of that appeal, the Management
issued appointment order dated 10th June, 1999, indicating that
the Petitioner was appointed on probation. During the probation
period, however, few memos were issued to the Petitioner, which,
according to the Petitioner, were unrelated to his work.
Nevertheless, the Petitioner was served with the termination order.
In fact, in the subject taught by the Petitioner, the result of the
students was 100%. The Petitioner, aggrieved by the termination
of his services, filed appeal before the School Tribunal, asserting
that he was appointed as permanent employee, right from the
initial appointment and, his service could not be terminated in the
manner sought to be done. The Tribunal, however, dismissed the
appeal preferred by the Petitioner and instead, held that since the
initial appointment order of the Petitioner was purely on
temporary basis for a limited period, the Petitioner cannot be
treated as appointed on probation. The Tribunal rejected the
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argument of the Petitioner of having become deemed permanent.
The Petitioner then filed the present Writ Petition in this Court, in
which, reference has been made to the Larger Bench, as mentioned
above.
4) We have heard Counsel for the respective parties. The
leading argument was made by Advocate Mihir Desai, followed by
Mr.Sunil Dighe espousing the cause of the employees; and by
Mr.A.G. Kothari, Mr.Suresh Kumar Panicker and Mr. A. M. Joshi
espousing the cause of the Management. Ms. Sindha Shridharan
and Mr. Jaydeep Deo, AGPs appeared for the State.
5) According to the Counsel for the employees, the
purport of Section 5 of the Act leaves no choice to the
Management of a private school but to fill in the permanent
vacancy, by appointing a person duly qualified to fill in such
vacancy, in the manner prescribed. The Management, after
commencing the procedure for appointment of a person duly
qualified, to fill permanent vacancy, cannot deflect that process by
issuing appointment order indicating that the appointment was
made on temporary basis or for limited period. Further,
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irrespective of the tenor or the contents of the appointment order,
it will have to be assumed that the appointment was on probation
for a period of two years, if made against permanent vacancy. For
the same reason, even the Tribunal or the Court, as the case may
be, would be justified to hold that the person was deemed to be
appointed on probation, within the meaning of Section 5 of the
Maharashtra Employees of Private Schools (Conditions of service)
Regulation Act 1977 (hereinafter referred to as “the said Act”),
if it is found that his appointment was against a clear and
permanent vacancy, notwithstanding the contents of the letter of
appointment. In support of their submission, Learned Counsels
have relied on the Authorities referred to in the reference order.
They have also pressed into service decisions of the Single Judge of
this Court in the case of Enteshan Baig vs. Abdul Aziz
Ansari14 and Jagdamba Education Society, Nagpur vs. Rajendra
Baburao Golhar and Ors.
15 They attempted to distinguish
the decision of the Division Bench of our High Court in the
case of Priyadarshini Education Trust and Ors. Vs. Ratis (Rafia)
Bano and Ors.
16 and also unreported decision of the Apex Court in
14) Decided on 5th December, 1985 in Writ Petition No. 2616 of 1983
15) 2009(2) Mh. L. J. 522
16) 2007(6) Mh. L. J. 667
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the case of Chatrapati Shivaji Shikshan Prasarak Mandal and Ors.
Vs. Dattatraya Rupa Pagar and Ors.
17
.
6) On the other hand, Counsel for the Management would
argue that the submission canvassed by the employees is founded
on misinterpretation of Section 5 of the said Act. Section 5 merely
provides for a legal fiction that if a person who has been
“appointed on probation” to fill up a permanent vacancy, upon
completion of probation period of two years, shall be treated as
deemed to have been confirmed. Section 5, however, does not
contain a legal fiction to ignore the terms and conditions of the
appointment order and to assume that the appointment was on
probation basis, merely by virtue of the fact that the appointment
was against a permanent vacancy. According to the Management,
in a given case, even though the Management may commence the
process for selecting a qualified person to be appointed on
probation, against a permanent vacancy, in its private school,
however, there is inherent power in the Management to issue
appointment order, to appoint that person on purely temporary
17) Decided on 13th April, 2012 in Civil Appeal No. 3563 of 2012, arising out of SLP (C) No.
18327 of 2011.
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basis for a limited period, making it clear that his services will be
terminated on expiry of that period, without any notice. Further,
the Management is free to issue successive appointment orders on
similar basis, until a duly qualified person, who is found to be
suitable by the Management, is available and selected to fill up the
permanent vacancy. The Management may consider appointing
only such person on probation. For, there is no obligation on the
Management to appoint a person duly qualified, directly on
probation for two years against a permanent vacancy. In other
words, only duly qualified suitable candidate, selected by the
Management, as such, at the end of the selection process, to fill a
permanent vacancy, the Management would appoint the person on
probation. Section 5 of the Act does not whittle down this power
and authority of the Management. On the contrary, the language
of Section 5 supports this stand of the Management. The Counsel
for the Management, in addition to the authorities referred to in
the reference order, have pressed into service decision of the Apex
Court in the case of Gridco Limited and Anr. Vs. Sadananda Doloi
and Ors.
18, which has restated the legal position that the power to
make contractual appointment is implicit in the power to make a
18) 2012 AIR (SC) 729
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regular permanent appointment unless the statute under which the
Authority exercises its powers and discharges its functions or the
Rules and Regulations governing recruitment specifically forbid the
making of such an appointment.
7) Before we analyse the rival submissions, we deem it
appropriate to reproduce relevant provisions of Section 5 of the
Act and the Rules. Section 5 reads thus:
“5. Certain obligations of Management 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 the appointment of a person duly qualified to fill such
vacancy:
[[ Provided that unless such vacancy is to be filled in by
promotion, the management shall, before proceeding to fill such
vacancy, ascertain from the Educational Inspector, Greater
Bombay, [the Education Officer, Zilla Parishad or as the case may
be, the Director or the officer designated by the Director in
respect of schools imparting technical, vocational, art or special
education,] 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 [except
Shikshan Sevak] shall be on probation for a period of two years.
Subject to the provisions of subsections (4) and (5), he shall on
completion of this probation period of two years, be deemed to
have been confirmed.
[Provided that, every person appointed as shikshan sevak shall be
on probation for a period of three years]
[(2A) Subject to the provisions of subsections (3) and (4),
shikshan sevak shall, on completion of the probation period of
three years, be deemed to have been appointed and confirmed as
a teacher.]
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(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 [or honorarium] 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 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 reuquired period of
probation for the purposes of subsection (2).
[(4A) Nothing in subsection (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 subsection (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.”
8) Rule 9 and 10 of the Maharashtra Employees of Private
Schools (Conditions of Service) Rules, 1981 (hereinafter referred
to as “the said Rules)”, reads thus :
“9. Appointment of staff.
(1) The teaching staff of the school shall be adequate
having regard to the number of classes in the school and the
curriculum including alternative courses provided and the
optional subjects taught therein.
(2) Appointments of teaching staff (other than the
Head and Assistant Head) and those of nonteaching staff in a
school shall be made by the School Committee:
Provided that, appointments in leave vacancies of a
short duration not exceeding three months, may be made by the
Head, if so authorized by the School Committee.
(3) Unless otherwise provided in these rules for every
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appointment to be made in a school, for a teaching or a non
teaching post, the candidates eligible for appointment and
desirous of applying for such post shall made an application in
writing giving full details regarding name, address, date of birth,
educational and professional qualifications, experience, etc,
attaching true copies of the original certificates. It shall not be
necessary for candidates other than those belonging to the
various sections of backward communities for whom posts are
reserved under subrule (7) to state their castes in their
applications.
(4) The age limit for appointment to any post in a
school shall be as follows, namely:
(a) for an appointment to be made to any post
in a primary school, a candidate shall not be less that 18 years of
age and more than +[28] years of age, and in the case of
candidate belonging to the Backward Classes he shall not be more
than +[33] years of age]
Provided that, upper agelimit may be relaxed in
case of women, exservicemen and persons having previous
experience with the previous permission of the Deputy Director.
+(the figures and words “25 years” and “30 years” are
substituted by figures and words “28 years” and “33 years”
by Not. No. PST 1083/194/SE3, Cell, dated 20.12.1984.)
(b) for an appointment to be made to any post
in any school other than primary school, a candidate shall not be
below the age of 18 years.
(5) A letter of appointment order in the Form in Schedule ‘D’
shall be issued to a candidate appointed to the post. A receipt in
token of having received the appointment order shall be obtained
from the candidate appointed.
(6) Every employee shall within three months of his
appointment, undergo medical examination by a registered
medical practitioner named, if any, by the Management or
otherwise by any registered medical practitioner. The expenses of
medical examination shall be borne by the Management. The
appointment shall be conditional pending certificate that he is
free from any communicable disease and that he is physically fit
to be so appointed.
+[(7) The Management shall reserve 52 per cent of the total
number of posts of the teaching and nonteaching staff for the
persons belonging to the Scheduled Castes, Scheduled Tribes,
Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Special
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Backward category and other Backward Classes as follows,
namely:
(a) Scheduled Castes 13 per cent;
(b) Scheduled Tribes 7 per cent;
(c) Denotified Tribes (A) 3 per cent;
(d) Nomadic Tribes (B) 2.5 per cent;
(e) Nomadic Tribes (C) 3 per cent;
(f) Nomadic Tribes (D) 2 per cent;
(g) Special Backward Category 2 per cent;
(h) Other Backward Classes 19 per cent;
Total 52 per cent.
+subrule (7) substituted by Not. No. PRASHANYA.. 1005/
(94/05)/SE2 dated 08.07.2008.
(8) For the purpose of filling up the vacancies reserved under
subrule (7) the Management shall advertise the vacancies in at
least one newspaper having wide circulation in the region and
also notify the vacancies to the Employment Exchange of the
District and to the District Social Welfare Officer +[and to the
associations or organizations of persons belonging to Backward
Classes, by whatever names such associations or organizations are
called, and which are recognized by Government for the purposes
of this subrule] requisitioning the names of qualified personnel,
if any, registered with them. If it is not possible to fill in the
reserved post from amongst candidates, if any, who have applied
in response to the advertisement or whose names are
recommended by the Employment Exchange or the District Social
Welfare Officer +[or such associations or organizations as
aforesaid] or if no such names are recommended by the
Employment Exchange or the District Social Welfare Officer +[or
such associations or organization as aforesaid] within a period of
one month the Management may proceed to fill up the reserved
post in accordance with the provisions of subrule (9).
+ The words are inserted by Not No. PST/1083/194/SE3
Cell, dated 20.12.1984.
(9) (a) In case it is not possible to fill in the teaching
post for which a vacancy is reserved for a person belonging to a
particular category of Backward Classes, the post may be filled in
by selecting a candidate from the other remaining categories in
the order specified in subrule (7) and if no person from any of
the categories is available, the post may be filled in temporarily or
an yeartoyear basis by a candidate not belonging to the
Backward Classes.
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(b) In the case of nonteaching post, if a person
from the particular category of Backward Classes is not available,
the Management shall make efforts with regular intervals to fill
up the post within the period of five years and the post shall not
be filled up during that period by appointing any other person
who does not belong to the respective category of Backward
Class.
+[(10) (a) The Management shall reserve 33 per
cent. Of the total number of posts (or vacancies) of heads and
Assistant Heads for the numbers of Scheduled Castes, Scheduled
Castes converts to Buddhism, Scheduled Tribes Denotified Tribes
(Vimukta Jatis), Nomadic Tribes and Special Backward Category
as follows, namely:
(i) Scheduled Castes and Scheduled
Castes converts to Buddhism
13 per cent
(ii) Scheduled Tribes including those
living outside the specified areas.
07 per cent
(iii) Denotified Tribes (A) 03 per cent
(vi) Nomadic Tribes (B) 2.5 per cent.
(v) Nomadic Tribes (C) 3.5 per cent.
(vi) Nomadic Tribes (D) 02 per cent.]
(vii) Special backward Category 33 per cent
(b) In case it is not possible to fill in the post of
a Head or Assistant Head for which a vacancy is reserved for a
person belonging to the Castes and Tribes specified in clause (a),
the post may be filled in by promoting a candidate from the other
remaining categories in the order specified in clause (a), so
however that the percentage of filling up such vacancies does not
exceed the limit laid down for each such category. If candidates
belonging to any of these categories are not available, then the
vacancy or vacancies –
(i) of the Head may be filled in by promoting
any other teacher on the basis of senioritycummerit after
obtaining previous approval of the Education Officer:
(ii) of the Assistant Head shall be kept unfilled
for a period of three years; unless such vacancy or vacancies
could be filled in by promotion of any teachers belonging to such
castes or Tribes becoming available during that period.
+Clause (a) substituted by Not. No. PRASHANYA.
1607/(516/07)/PE3 dated 08.10.2008
+[(11) …………..] Deleted.
+Subrule (11) is deleted by Note.No.
PST/1083/194/SE3Cell, dated 20.12.1984.”
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“10. Categories of Employees.
(1) Employees shall be permanent or nonpermanent.
Nonpermanent employees may be either temporary or on
probation.
(2) A temporary employee is one who is appointed to a
temporary vacancy for a fixed period.”
9) Form of order of appointment, as prescribed in
Schedule ‘D’ reads thus:
“SCHEDULE ‘D’
[See rule 9 (5)]
Order of Appointment
No. Date
From
To
Shri/Smt.
With reference to your application dated ……………….., I
have the pleasure to inform you that you are hereby appointed
as …………………... on Rs. ………… per month in the scale of
Rs. …………… with effect from ……………….. or the date
your report for duty. You will be entitled to allowances such as
compensatory local allowance, house rent allowance and
dearness allowance as specifically sanctioned by Government
from time to time.
2 * Your appointment is purely temporary for a
period of ………..*months/years from ……………. In the
*leave/deputation vacancy. After expiry of the above period,
your services shall stand terminated without any notice.
OR
*Your appointment is on probation for a period of
two years.
3 The terms of your employment and conditions of
service shall be as laid down in the Maharashtra Employees of
Private Schools (Conditions of Service) Regulation act, 1977
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and the Rules made thereunder.
4 You shall have to undergo a medical examination
by Dr. …………………………. + within three months from the
date of joining the post. Your appointment shall be conditional
pending the receipt of physical fitness certificate from the
doctor whose name is mentioned above.
5 You are requested to acknowledge receipt of this
order of appointment and communicate the acceptance of the
appointment within …………… days from the date off receipt
of the same.
6 If no reply accepting the appointment is received
within the period mentioned in paragraph 5 the order shall be
treated as cancelled.
Yours faithfully.
*Head Master and Secretary of
the School Committee (in the
case of appointment order of
teaching and nonteaching staff
of the school excluding the Head
Master/Assistant Head Master).
Seal
*Chief Executive Officer (in the
case of order of appointment of
Head Master/Assistant Head
Master).
* Strike off which is not applicable.
+ To be named by the Management.
’’
10) We shall also refer to the Bombay Primary Education
and the Maharashtra Employees of Private Schools (Conditions of
Service) Regulation (Amendment) Act, 2011, which came into
effect from 14th May, 2012. Section 10 to 12 of the said Act reads
thus:
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“10. Amendment of section 2 of Mah. III of 1978 –
In section 2 of the Maharashtra Employees of Private Schools
(Conditions of service) Regulation Act, 1977 (hereinafter, in this
Chapter, referred to as “the Employees of Private Schools
(Conditions of Service) Regulation Act”),
(a) in clause (7), for the words “shikshan sevak” the words
“Assistant Teacher (Probationary)” shall be substituted;
(b) in clause (10), for the words “shikshan sevaks” the
words “Assistant Teachers (Probationary)” shall be substituted;
(c) in clause (24A), for the words “shikshan sevak” the
words “Assistant Teacher (Probationary)” shall be substituted.
11. Amendment of section 5 of Mah. III 1987 –
In section 5 of the Employees of Private Schools (Conditions of
Service) Regulation Act,
(a) in subsection (2) –
(i) for the words “shikshan sevak” the words
“Assistant Teacher (Probationary)” shall be substituted;
(ii) in the proviso, for the words “shikshan sevak”
the words “Assistant Teacher (Probationary)” shall be substituted;
(b) in subsection (2A), for the words “Shikshan sevak” the
words “Assistant Teacher (Probationary)” shall be substituted.
12. Saving – The terms and conditions prescribed by the
Government for the appointment of shikshan sevaks, by issuing
Government Resolutions or orders, from time to time, before the
date of commencement of the Bombay Primary Education and the
Maharashtra Employees of Private Schools (Conditions of Service)
Regulation (Amendment) Act, 2011, shall continue to be in force
unless they are modified or revoked by the Government.”
11) Reverting to the issue under consideration, there is
force in the argument of the Management that the power to make
a contractual appointment on temporary basis is implicit in the
power to make an appointment on probation after following the
prescribed selection procedure to fill in a permanent vacancy,
unless the statute under which the authority is exercised expressly
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or impliedly forbids the making of such appointment [see Gridco
Ltd. (supra) para 12 thereof].
12) The question is: whether the provisions, extracted
above, have the propensity to whittle down that authority of the
Management? Indisputably, the governing provision regarding the
conditions of service of employees of the private schools can be
traced to Section 5 of the Act of 1977. Subsection (1) thereof
postulates that the Management shall fill in the permanent
vacancy as soon as possible. It further provides that the
appointment of a person duly qualified, to fill permanent vacancy,
should be made in the manner prescribed. It is one thing to
suggest that the permanent vacancy in a private school must be
filled only by a duly qualified person and in the manner
prescribed. But, that does not necessarily mean that the inherent
powers of the Management to make appointment on contractual
basis, is expressly or impliedly taken away, by law. There is
nothing in this subsection to indicate to the contrary.
13) Indeed, this provision obliges the Management to fill in
the permanent vacancy “as soon as possible”. The term “as soon as
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possible” would mean that it has to be done within a reasonable
time. That is a relative term. Nevertheless, by virtue of mandate
of section 5(1), there is implicit obligation on the Management to
fulfill that requirement at the earliest, to wit, before
commencement of the new academic year. That is so because, a
permanent vacancy is one, which is in respect of a sanctioned post
and in the case of an aided school, entitles the Management to
receive commensurate grants in aid from the Government. Further,
the sanctioned post for a school is prescribed by the State
Authority keeping in mind the benchmark to be maintained for
imparting high quality education and maintaining discipline in the
school – commensurate with the strength of the students in the
school. Thus, keeping the permanent vacancy unfilled for a long
time, may entail in dilution of imparting of quality education. A
fortiori, though the Management has implicit power to appoint a
duly qualified person on contractual employment even against a
permanent vacancy but, that must be only an interim arrangement
till a suitable candidate is found in the selection process. It cannot
be continued on year to year basis in succession. If the
Management holds the selection process in the prescribed manner
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but wants to appoint the selected candidate on temporary basis
must contemporaneously record tangible reasons as to why the
selected candidate is not suitable to be appointed on probation
against the permanent vacancy. In that event, the Appropriate
Authority can consider the challenge to the appointment on
temporary basis instead of probation, against a permanent
vacancy. Further, the Management, receiving grants in aid, from
the Government, should not and cannot be permitted to appoint a
duly qualified person on temporary basis against a permanent
vacancy, without holding of selection process as soon as possible in
the prescribed manner. Besides, inspite of availability of a suitable
candidate identified in the selection process held to fill in the
permanent vacancy, the Management cannot appoint him on
temporary basis against a permanent vacancy. Any other view
would be antithesis to the mandate of Section 5(1) of the Act and
against the principle underlying the exposition of the Apex Court
in the case of Ratan Lal and Ors. Vs. State of Haryana and Ors., as it
would be hit by Article 14 and 16 of the Constitution of India.
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14) Reverting to the proviso to Subsection (1) of Section
5, it is in respect of vacancy to be filled in by promotion. This
provision has no application to the question posed for our
consideration, which is related to initial appointment.
15) We may now turn to Subsection (2) of Section 5 of the
Act, which is the core provision for answering the controversy. No
doubt, the opening sentence of this provision gives an impression
that every person, appointed to fill a permanent vacancy, shall be
on probation for a period of two years. However, this provision
cannot be construed as taking away the implicit power of the
Management to make a contractual employment while making a
regular permanent appointment. This provision is only an enabling
provision that if the Management intends to fill a permanent
vacancy, has to appoint a person duly qualified on probation for a
period of two years. This part of Subsection (2), cannot be
construed as a deeming provision or a legal fiction to treat every
appointment made against a permanent vacancy must be on
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probation, notwithstanding the express terms contained in the
appointment order that the appointment is contractual and
temporary basis for a limited period. The deeming provision or
legal fiction is found in the second part of Subsection (2). That
applies to a person, who, in fact, has been appointed on probation
and completes probation period of two years. That person is
deemed to have been confirmed. The second part of this sub
section cannot come to the aid of an employee who was in fact
appointed on purely temporary basis for a limited period.
16) The question is, whether the Management has
unbridled power and authority to appoint a duly qualified person
on temporary basis against a permanent vacancy? As aforesaid,
the Management is, primarily, under an obligation, in law, by
virtue of Section 5(1), to fill in the permanent vacancy as soon as
possible. To wit, if a permanent vacancy is caused by any reason,
before the commencement of the new academic year, the
Management must take immediate steps to fill in that vacancy, by
appointing a duly qualified person, after following the prescribed
procedure, on probation, for a period of two years. That means,
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the selection process must be held to, as far as possible, culminate
with selection of a duly qualified person, before the
commencement of the new academic year. However, for some
fortuitous or tangible reason, such selection process cannot be
commenced or for that matter completed, there would be nothing
wrong if the Management were to appoint a duly qualified person
on contractual or temporary basis, for a limited duration, so that,
in the mean time, the prescribed procedure to select a duly
qualified person, to fill in the permanent vacancy is completed and
the selected person can be appointed on probation, against the
permanent vacancy. There may be situation where the
Management makes efforts in right earnest to complete the
selection process but, at the end of the process, it is confronted
with a situation where the person who participated in the selection
process, though duly qualified, in its perception is not suitable for
appointment. In that event, it can certainly make an appointment
on contractual or temporary basis, for a limited duration, so that
new selection process can be commenced and concluded within a
reasonable time.
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17) Ordinarily, if the selection process is commenced and at
the end of the selection process a person duly qualified is available
and is found to be suitable, the Management is under an obligation
to appoint him on probation, to fill in the permanent vacancy. This
mandate flows from conjoint reading of Subsection (1) and (2) of
Section 5. The only exception is, where a person identified in the
selection process is duly qualified but is not found suitable by the
Management, the Management is free to exercise its inherent
power of making a contractual or temporary appointment. Indeed,
whether a person, who had participated in the selection process, is
suitable for being appointed or otherwise, is the subjective
satisfaction of the Management. Merely because a person is duly
qualified, that per se is not enough. The person must not only be
duly qualified to fill the permanent vacancy but, must also be
found to be suitable by the Management. However, the
Management cannot be permitted to take cover under the pretext
of successively rejecting the candidates in selection process on the
ground of suitability; and keep on appointing same person or
different persons on contractual or temporary basis for limited
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duration, against a permanent vacancy. In cases where the
Management takes a conscious decision to appoint a duly qualified
person on temporary basis, for a limited period against a
permanent vacancy, it must contemporaneously record its
subjective satisfaction in that behalf. For, if the appointment order
on contractual basis were to be made subject matter of challenge
before any Authority or Court of law, in such inquiry, it may be
open to examine the controversy on the touchstone of
permissibility of judicial review of such decision. If finding of
colourable exercise of power by the Management is arrived at in
that inquiry, appropriate direction can be issued against the
Management. That will have to be examined on case to case basis.
18) A priori, we have no hesitation in taking the view
that neither Section 5(1) nor 5(2) of the Act can be construed
as forbidding the Management from making an appointment
on contractual or temporary basis for a limited duration
against a permanent vacancy until a suitable candidate
is selected. Further, there is nothing in these provisions to
indicate that every appointment made by the Management,
in relation to a permanent vacancy, must be deemed to have been
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made on probation for a period of two years. There is no such
legal fiction unlike in the case of a person appointed “on
probation” for a period of two years, is deemed to have been
confirmed, upon completion of that period. In other words, the
parties would be bound by the terms and conditions stated in the
letter of appointment, as there can be no presumption of
appointment having been made “on probation” unless expressly
stated in the appointment letter itself.
19) Our attention was invited to Subsection (2A) of
section 5 as also the amendment of 2011. This provision
essentially pertains to the conditions of service of Shikshan sevaks.
The question under consideration has no application to the
appointment of Shikshan sevaks. By virtue of proviso to sub
section (2), a duly qualified person has to be appointed on
probation for a period of three years as Shikshan sevak and by
virtue of Subsection (2A), on completion of probation period of
three years, that person is deemed to have been appointed and
confirmed as Assistant Teacher. The term Shikshan sevak, by virtue
of amended provisions would mean “Assistant Teacher
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(Probationary)”. As aforesaid, we are not concerned with the
conditions of service of Shikshan sevak or Assistant Teacher
(Probationary), much less with the amended provisions or the
efficacy thereof.
20) Relying on Subsection (5) of Section 5, it was argued
that the Act makes distinction between “permanent vacancy” and a
“temporary vacancy”. While appointing a person against a
temporary vacancy, the order of appointment has to be drawn in
the prescribed form and it must state the period of appointment of
such person. It was submitted that this subsection is indicative of
the scheme of Section 5. It makes a marked departure when the
appointment is to be made against a permanent vacancy. No
doubt, this provision deals with a specific category of vacancy
namely, temporary vacancy and the manner of filling in that
vacancy. However, this provision cannot be construed to mean as
forbidding the Management from making contractual or temporary
appointment in respect of a permanent vacancy, if the situation so
warrants, which is the implicit power of the Management while
making appointment against a permanent vacancy. The only word
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of caution we may add, is, ordinarily, when appointment is to be
made against a permanent vacancy, the Management is obliged to
follow the prescribed procedure in that behalf but, only when the
selection process cannot be taken to its logical end or because of
unsuitability of the candidates, the Management may be justified
in appointing a duly qualified person for a temporary period. In
that case, however, the Management is under a legal obligation to
initiate the process for appointing a duly qualified suitable person
against the permanent vacancy on probation, at the earliest.
21) We may now refer to Rule 9 of the said Rules. This
provision deals with the procedure for appointment and issuance
of appointment order in the prescribed form of staff, namely,
teaching as well as non teaching staff. The argument proceeds
that Subrule (8) merely provides for procedure for making
temporary or year to year basis appointment only against a
reserved vacancy. As regards the permanent vacancies or posts,
such arrangement is conspicuously absent. This argument clearly
overlooks that the Rules are framed only to specify the procedural
matters. The substantive portion is found in Section 5 of the Act.
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We have elaborately dealt with the purport of Section 5 in the
earlier part of this Judgment. The fact that there is no provision in
Rule 9 regarding the manner of making appointment on temporary
or year to year basis against a permanent vacancy, does not, in any
manner, affect the legal position that the Management has implicit
power of appointing a person on contractual or temporary basis,
while making a regular permanent appointment, in absence of an
express provision forbidding it to do so.
22) Emphasis was then placed on Rule 10 to demonstrate
that only two categories of employees are recognized by the Rules,
namely, permanent or non permanent. Further, the non
permanent employees may be either temporary or on probation.
Subrule (2) of Rule 10 envisages that a temporary employee is
one who is appointed on a temporary vacancy, for a fixed period.
As aforesaid, the Rules cannot be the basis to undo or whittle
down the implicit power of the Management, in making
contractual or temporary appointment, as there is no express
provision in the Act of 1971, forbidding the Management from
exercising that power.
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23) The Form of order of appointment is found in Schedule
‘D’ to the Rules. Clause 2 of the Form indicates the category of
appointment, purely temporary or on probation. As regards
appointment on temporary basis, it refers to the appointment
against leave/deputation vacancy. Moreover, the prescribed Form
provides that the inapplicable conditions be struck off. Understood
thus, we have no manner of doubt that the scheme of the Act and
the Rules in no way forbid the Management to appoint a duly
qualified person on temporary basis for a limited duration, until
the selection of a duly qualified and “suitable” person for being
appointed on probation, to fill in the permanent vacancy.
24) The other legal principle, which is indisputable, is that,
if the parties accept the terms and conditions stipulated in the
appointment order, later on, it is not open to the employee to
challenge that appointment, being contrary to the Rules or on the
ground that the terms and conditions stipulated therein were not
legally valid. This legal position is restated in para 8 of
Kalpataru Vidya Samasthe (supra). In the facts of the present case,
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it is noticed that the initial appointment of the Writ Petitioner, in
the leading Writ Petition, was on temporary basis for a limited
period. After his service was terminated, once again he was
appointed in the following academic year, on the same post but, on
temporary basis. When the said Petitioner was appointed in the
succeeding academic years, he had become fully aware about the
terms and conditions of his initial appointment, yet he continued
to be in the employment, without any demurer. Suffice it to
observe that if the appointment order mentions that the
appointment is on temporary basis or for a limited period, it is not
open to the employee to assume that he was appointed on
probation against permanent vacancy, nor it is open to the School
Tribunal or the Court of law to assume that fact. That is a question
of fact to be pleaded and proved in appropriate proceedings, on
case to case basis. We hold that there is no legal fiction or
deeming provision that every appointment made against the
permanent vacancy, is deemed to be on probation, though the
Management makes that appointment on temporary basis, having
found that the candidates appeared in the selection process were
unsuitable.
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25) We shall now turn to the relevant decisions. In the
case of National Education Society’s High School (supra), the
Learned Single Judge of this Court, after adverting to the
appointment order, which clearly mentioned that it was for the
relevant academic year and for a limited term, held that since the
Petitioner therein was appointed in the vacancy caused due to the
outgoing employee, who was a permanent employee, the
appointment should be deemed to be on probation. It is not
possible to countenance this exposition. The next decision is an
unreported decision of the Division Bench of this Court in the case
of Anil Vasant Chaudhari (supra), which has followed the view
taken by the Learned Single Judge in the case of National
Education Society (supra) and Enteshan Baig (supra).
26) However, we are bound by the exposition of the Apex
Court in the case of Hindustan Education Society (supra), which
had occasion to consider Section 5 of the Act. In that case, the
appointment of Respondent No. 1 therein was against a clear
vacancy but on purely temporary basis, for a limited period of
eleven months. The Court, after considering Section 5(1) and (2)
of the Act, opined that the said respondent cannot be treated to be
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appointed as a permanent employee or that he was appointed on
probation. Even in the case of Bhartiya Gramin P. Sanstha (supra),
the Apex Court was dealing with person appointed for a period of
two years. No doubt, in that case, the appointment was on purely
temporary basis, because of non availability of reserved candidate
to fill in permanent vacancy. But, the principle restated in this
decision, is that, when the appointment letter expressly states the
terms and conditions, it is not open to assume that the
appointment was on probation, merely because of availability of
permanent vacancy. Even in the unreported decision of the Apex
Court in the case of Chatrapati Shivaji Shikshan Prasarak Mandal
(supra), the same view has been reiterated. In the case of
Priyadarshini Education Trust (supra), the Division Bench of this
Court has culled out the gist of the decisions on the point, in
paragraph 9 thereof. Notably, the issue was directly considered by
the learned Single Judge, after the decision in Hindustan Education
Society (supra), in the case of Pandurang Maruti Dhumal (supra).
As a matter of fact, the Learned Single Judge expressed his
inability to take a different view because of the said decision of the
Apex Court. His Lordship granted leave to appeal under Article
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133 read with 134(A) of the Constitution of India, as prayed by
the Petitioner, as the issue was recurring one and involved in large
number of matters. However, due to dismissal of the SLP (Civil)
No. 14795 of 1999 against the decision in Writ Petition No. 3488
of 1999 in the case of Pandurang Dhumal, vide order dated 7th July,
1999, it is clear that the Apex Court did not find it necessary to
examine the question any further, having been answered in the
decision in Hindustan Education Society (supra).
27) The Counsel for the Writ Petitioner, however, relied on
the decisions of the Learned Single Judge of this Court in the case
of Enteshan Baig (supra), Shri. Sairam Education Trust (supra),
Shikshan Prasarak Mandal (supra) and Jagdamba Education
Society (supra). For the view that we have taken, we do not agree
with the exposition of the learned Single Judge of this Court in the
abovesaid decisions. No doubt, attempt has been made in the case
of Shikshan Prasarak Mandal (supra) to distinguish the Judgment
of the Apex Court in the case of Hindustan Education Society
(supra). Further, the reason to distinguish the decision of the Apex
Court decision in the case of Hindustan Education Society (supra),
will be of no avail. That reason cannot be the basis to discard the
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exposition, in particular, in Paragraph 5 and 6 of Hindustan
Education Society (supra). Because, it clearly proceeds on the
admitted position that the appointment order of Respondent No. 1
indicated that the appointment was on purely temporary basis,
against a clear vacancy. Counsel for the Writ Petitioner, however,
was at pains to persuade us to take a view that the expression
“clear vacancy” may have different connotation than the
expression “permanent vacancy”. In case of permanent vacancy,
the manner of appointment can be only on probation. However,
we are not impressed with this logic.
28) Accordingly, we are inclined to answer the issue in the
negative. We hold that it is not open to the School Tribunal to
assume as of fact that the appointment made against a clear and
permanent vacancy is deemed to be on probation, within the meaning of Section 5(2) of the Act.
The School Tribunal cannot disregard the terms and conditions of the letter of appointment, if it expressly provides that the appointment is on temporary basis, for a limited term.
29) Having answered the issue under consideration, we
deem it appropriate to direct the office to place the matters, before
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the Appropriate Bench, for taking up the same for hearing on
merits.
(K.K.TATED,J.)(RANJIT MORE, J.)(A.M.KHANWILKAR,J.)
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Sunday, June 2, 2013

Specific performance refused = refund order for expenditure incurred = agreement of sale executed for the purpose of loan but not for sale = In the instant case, PW-1 was not clear as to when he paid the amount. Ex.A-29 was not in his favour. There is no recital in that document also, about payment of amount. The defendants 1 and 2 categorically stated that they received a sum of Rs. 2 lakhs, as loan, from the respondents, long ago, for their necessity, and paid the same. In case PW-1 wanted to treat the money paid by him, as the consideration for the land, heavy burden rested upon him, to establish the relevant factors. However, he miserably failed, in this front. Further, DW-1 did not derive any right, much less saleable interest, vis--vis the land, by the time, Ex.A-29 was said to have been executed. Hence, the appeal is partly allowed, upholding the decree, to the extent it has denied the specific performance of agreement of sale, but granting the alternative relief of directing refund of a sum of Rs.15,21,096-10 ps. to the plaintiffs 2, 3 and 4, jointly, leaving it open to them to determine their respective shares, subject to the handing over the original sale deed of the suit property to the 1st defendant. The amount shall carry interest @ 10% per annum from the date of the decree, till the date of its realization.

reported/published in http://judis.nic.in/judis_andhra/=9910

THE HON'BLE SRI JUSTICE L .NARASIMHA REDDY
THE HON'BLE SRI JUSTICE K.G.SHANKER

CCCA No.84 of 2010
(Judgment of the Bench delivered by
the Hon'ble Sri Justice L. Narasimha Reddy)

29-04-2013

Sri Krishna Devloor (D.S. Krishna) (died) per LR ...appellants

Vs.

N. Madhavi and others ...Respondents

Counsel for the appellants : Sri B.V. Subbaiah, Sr. Counsel

Counsel for the Respondents : Sri D. Prakash Reddy, Sr. Counsel

<GIST:

>HEAD NOTE:

?Cases referred
NIL

JUDGMENT: (Per the Hon'ble Sri Justice L. Narasimha Reddy)

This appeal is filed against the judgment and decree dated 22-03-2010
passed by the Court of IX Additional Chief Judge
(Fast Track Court), City Civil Court, Hyderabad. For the sake of convenience,
the parties herein are referred to, as arrayed in the suit.
The deceased-1st plaintiff (hereinafter referred to, as 'PW-1') filed the
suit against the defendants for the relief of specific performance of agreement
of sale, in respect of the suit schedule property, a plot of about 1100 sq.
yards in Jubilee Hills, Hyderabad, or, in the alternative, for a decree, for
refund of Rs.15,21,096-10 ps., with interest.
During the pendency of the suit, PW-1 died.
Smt. D. Vasantha Kumari, the 2nd plaintiff, who is said to be the
2nd wife of PW-1, and respondents 3 and 4 herein (plaintiffs 3 and 4 in the
suit), who are his son and daughter, respectively, through his first wife, were
added as legal representatives. This appeal is filed by the 2nd plaintiff.
The facts pleaded in the plaint, in brief, are that the suit schedule plot
was allotted by the Jubilee Hills Cooperative House Building Society (for short
'the Society') in favour of one, Mr.J. Shashidhar, and the original allottee agreed to transfer the plot as well as his membership in the Society, in favour of the1st defendant,
(hereinafter referred to as 'DW-1'). A letter dated
29-06-1991 (Ex.A-1) is said to have been issued by the original allottee, in
favour of DW-1. She, in turn, is said to have agreed to sell the plot to PW-1,
for a consideration of Rs.2,00,000/-, and accordingly, executed an agreement of
sale (Ex.A-29),
on 04-07-1992 in favour of the 2nd plaintiff, as nominee of PW-1 (much before
she came to be brought on record as legal representative). It was also stated
that the execution of agreement of sale was followed by submission of a letter
and affidavit by DW-1, on 10-12-1994.
According to PW-1, the transaction could not be finalized,
on account of certain organizational and administrative problems in the Society.
It was further pleaded that in supercession of an earlier arrangement, DW-1 has
agreed to sell the plot directly to PW-1, and accordingly addressed a letter
dated 10-08-1996 to the society, (Ex.A-31), and filed affidavit on 28-08-1996
(Ex.A-32). PW-1 is also said to have filed his affidavit, Ex.A-33, expressing
his willingness, on the same day.
PW-1 stated that after the uncertainties prevailing in the society
subsided, they were informed that a sale deed would first
be executed in favour of DW-1, and thereafter, she can execute a sale deed in
favour of her purchaser.
PW-1 is said to have arranged for finances, for
payment of a) dues to the Society, b) purchase of stamps, and c) dues of property tax; in all about Rs.15,00,000/-.
A sale deed was executed by the Society in favour of DW-1 on 04-01-2002
(Ex.A-30). Thereafter, PW-1 addressed a letter dated 20-04-2002 (Ex.A-10) to
the 2nd defendant, the husband of DW-1, calling upon him to arrange for
execution of sale deed, in his favour. The 2nd defendant, however, issued a reply dated
04-05-2002 (Ex.A-14), stating that the agreement of sale, executed in the year
1992, in favour of Smt. D. Vasanta Kumari (2nd plaintiff), was just a measure of security for repayment of the amount,borrowed from PW-1. He has also stated that they were ready to pay the amount,
and neither himself, nor his wife intend to sell the plot. This was followed by
a notice/letter dated 04-09-2002 (Ex.A-16), equivalent to Ex.B-19, addressed to the
2nd defendant. It was also pleaded by PW-1 that apart from payment of
registration charges, he paid the property tax, for the plot in question.
Alleging that the defendants 1 and 2 avoided execution of the sale deed, without
there being any valid legal basis, the suit was filed for specific performance
of agreement of sale, or for refund of the amount.
The defendants 1 and 2 opposed the suit, by filing the written-statement.
It was pleaded that DW-1 never intended to transfer the plot, or membership to
anyone. It was stated that they became acquainted with PW-1 through a common
friend, by name, B.S.Srinivasan, PW-2, and when they were in need of money, for
their industry, PW-1 advanced a sum of Rs.2 lakhs, and as a measure of security,
he obtained certain documents and signed blank papers. It was also their case
that DW-1 did not have any title to the plot of land, as on the date of the
alleged agreement, and there is no question of her executing any agreements of
sale, much less sale deeds. It was also stated that even according to the
documents, relied upon by PW-1, no consideration has been paid, and the whole exercise is speculative in nature.
DW-1 further pleaded that the payment of amounts to the Society was made
by PW-1, on his own accord, without any information to her, and in fact, the
letter of authorization (Ex.A-38), to obtain the registered sale deed, was also
fabricated by PW-1. She pleaded that the so-called letter and affidavit, marked
as Exs.A-31 and 32, were fabricated by PW-1, with oblique motive.
It was also her case that any payment made by PW-1, without authorization from
her, does not give rise to any rights to him. According to her, she has made
construction over the plot, and PW-1 did not have any right or interest over the
property in question. She expressed her readiness and willingness to pay the
amount, borrowed by her, from PW-1.
The trial Court dismissed the suit. Hence, this appeal.
Sri B. V. Subbaiah, learned Senior Counsel for the plaintiffs submits that
the trial Court disregarded the consistent oral evidence and voluminous
documentary evidence adduced on behalf of PW-1 and dismissed the suit.
He submits that once DW-1 admitted the factum of
receipt of amount, and the execution of agreement of sale, Ex.A-29, the decree
for specific performance ought to have been passed.
Learned Senior Counsel submits that the transaction in relation of the
allotment of plots by the Society is such that, whenever a party intends to
transfer the plot, he/she is required to file a letter and affidavit to that
effect, and some times by way of precaution, the signatures of the parties are
taken in the office of the Society, once again on the letter and affidavit, and
that in the instant case, the small discrepancy, that was noticed in the two
signatures, on the letter and affidavit, is projected beyond proportion. He
submits that the letter of authorization to receive the registered sale deed
from the office of the Sub-Registrar has also emerged in similar fashion.
Learned Senior Counsel further submits that though the initial agreement
of sale was in favour of the 2nd plaintiff, she nominated PW-1, as the
purchaser, and DW-1 ought to have executed the sale deed. He further submits
that even if there is any defect or deficiency in the title to the property,
when the agreement of sale was executed, the obligation to execute the sale deed
becomes enforceable, once the vendor acquires absolute title for the property.
It is also pleaded that though there is no proof of payment of consideration, in
the year 1992, the Income Tax returns filed by PW-1, in the year 1997, clearly
disclose that the payment is made. He has also filed a summary of the pleadings
and gist of his arguments.
Sri D. Prakash Reddy, learned Senior Counsel for the defendants, on the
other hand, submits that the case of the plaintiffs is full of contradictions
and inconsistencies, and that the trial Court was virtually left with no
alternative, except to dismiss the suit. He submits that this is a typical
case, where an agreement, which is said to have been executed in favour of one
person, is sought to be enforced by another, that too, without explaining
several discrepancies and lacunae. He contends that PW-1 himself deposed that
the consideration was not paid under Ex.A-29, and that he does not know, as to
whether it is paid, at all. Learned counsel submits that there is nothing on
record to suggest either that Ex.A-29 was executed in favour of the 2nd
plaintiff, at the instance of PW-1, or that the 2nd plaintiff has later on
nominated
PW-1, as the purchaser. He contends that the sole basis for the claim of PW-1
is the letter and affidavit said to have been signed by DW-1, in favour of PW-1,
marked as Exs.A-31 and 32, and on a comparison of the same with the originals
and other relevant documents, the handwriting expert recorded a finding to the
effect that they are fabricated and forged.
Learned Senior Counsel further submits that PW-1 has gone to the extent of
obtaining the original of the sale deed, executed by the Society, in favour of
DW-1, by fabricating a letter of authorization, i.e. Ex.A-38. He pleads that
though DW-1 is the absolute owner of the property, that too, since 2002, PW-1
demanded the 2nd defendant, for execution of sale deed. It is urged that the
2nd plaintiff, who alone filed the appeal, is only the so-called second wife of
PW-1, and the person, in whose name Ex.A-29 is said to have been executed,
whereas the undisputed legal heirs of PW-1, i.e. plaintiffs 3 and 4, did not
file appeal, at all. He contends that the 3rd plaintiff has, in fact, supported
the case of the defendants 1 and 2.
The suit was filed for the relief of specific performance of an agreement
of sale, or, in the alternative, for refund of a sum of Rs.15,21,096-10 ps. The
suit schedule property is a valuable one, and obviously for that reason, the
contest between the parties was very keen. On the basis of the pleadings before
it, the trial court framed the following issues for its consideration:

1. "Whether the Plaintiff is entitled for the relief of specific performance of
suit agreement of sale as prayed for?
2. Whether the Plaintiff is entitled alternatively for a decree for recovery of
Rs.15,21,096-10 Ps together with interest from the defendants as prayed for?
3. Whether the suit agreement and other documents are fabricated and forged"

The deceased-1st plaintiff deposed as PW-1. One,
Sri B.S. Srinivasan, deposed as PW-2, and the Driver of PW-1 deposed as PW-3.
However, his evidence was only as to the question of possession over the suit
schedule property. On their behalf, Exs.A-1 to A-47 were filed.
The 1st defendant deposed as DW-1. A Contractor, engaged by her, for
construction of a compound wall, was examined as
DW-2. The 3rd plaintiff in the suit, i.e. the son of PW-1 deposed as DW-3. The
handwriting expert was examined as DW-4, and Exs.B-1 to B-45 were filed. The
proceedings pertaining to the examination of the documents, by DW-4, were taken
on record, as Exs.C-1 to
C-5.
Though at one stage of the suit PW-1 claimed to be in possession of the
property, he did not stress it beyond a point.
After hearing the elaborate arguments advanced on behalf of the parties
and on a perusal of the record, we are of the view that the following points
arise for consideration in this appeal:

a) Whether there existed any agreement of sale in respect of the suit schedule
property in favour of the
PW-1;
b) Whether PW-1 paid the consideration for the property;
c) Whether PW-1 proved the crucial factors, that constituted the basis for him
to insist on the execution of the sale deed, in respect of the suit schedule
property;
d) Whether the plaintiffs are entitled for the relief of specific performance of
agreement of sale; and
e) Whether the plaintiffs are entitled for the relief of refund of the amount,
claimed in the suit.
Points (a), (b) and (c):
The first three points framed above, in a way, overlap each other. Hence
they are discussed together.
PW-1 was the lone plaintiff in the suit. The facts pleaded by him in the
plaint were that defendants 1 and 2 are his family friends, and through a common
friend, B.S. Srinivasan, i.e. PW-2, the latter mooted the idea of selling the
suit schedule property in the year 1992. By that time, the state of affairs was
that the Society allotted the suit schedule plot in favour of one, Mr.J.
Shashidhar, and he, in turn, is said to have submitted a letter and affidavit
for transfer of the plot in favour of DW-1. The status of DW-1 was that, she
figured as nominee by the original allottee. Beyond that, neither she has paid
the consideration to the Society, nor any document was executed by the Society
in her favour.
In the plaint, PW-1 did not make any mention about the
agreement of sale, said to have been executed by DW-1. The relevant paragraph
reads, as under:

"Para 4: That the Defendant No.1 at a later stage entered into an arrangement
for transfer of membership and allotment of plot in favour of the plaintiff
herein. The plaintiff herein however nominated one Smt. I. Vasantha for the
said purpose. The negotiations for the transaction were held between the
plaintiff on the one hand and the defendant No.1 and her husband defendant No.2
on the other in the presence of a common friend Mr.S. Srinivasan an Auditor the
consideration of Rs.2,00,000/- was agreed. As per the arrangements dated 4-7-
1992, the Defendant No.1 herein had also signed necessary affidavit and
application for submission in the society for transfer of membership and
allotment of plot in the name of I. Vasantha, nominee of the plaintiff herein.
However, in view of the various problems in the society the matter was getting
delayed and the papers were not submitted. Thereafter, the Defendants 1 and 2
made a request for some additional consideration. After the negotiations in the
presence of Mr.S. Srinivasan the figure of Rs.2,60,000/- was agreed. The
plaintiff had paid the said amount of Rs.2,60,000/- to the Defendants".

It is also important to note that the agreement of sale,
Ex.A-29, dated 04-07-1992, was not included in the list of documents, which
contained 38 items. The averments in paragraph 4 of the plaint are, as vague as
they could be. Added to that, PW-1 did not state as to when he paid the amount
of Rs.2,60,000/-. The oral evidence of PW-1 is in no way different. The
relevant portion on this aspect, runs as under:
"...In the year 1991-92 the def.no.1 entered into an agreement with me for
transfer of membership and consequent transfer of allotment of plot in my
favour. It is true at that time S. Srinivasan was the auditor of Def.No.1 and
2. He is also the auditor for me and even now he continues. I am not aware
till what time S. Srinivasan continued as an auditor of D1 and D2. I do not
remember the date of payment of Rs.2.00 lakhs. Since party was known to me I
did not insist for passing a receipt since they have initiated all the necessary
steps with the society. I did not obtain any receipt for Rs.2.00 lakhs or 2.60
lakhs either from the def.no.1 or def.no.2. I did not pay the amount towards
hand loan or on interest."

This evidence proceeds on the assumption that the agreement of sale, Ex.A-
29 was in favour of PW-1 himself. On the question of payment, it is necessary
to take note of the deposition of the other witness, i.e. PW-2. He stated that
he prepared the agreement of sale, Ex.A-29. He further stated on this aspect,
as under:

"...The 1st defendant has agreed to sell the property for Rs.2,15,000/-. I have
no idea when the sale consideration was paid. It was brought to my notice that
the amount was paid. It was only disclosed at the time of filing return under
voluntary disclose scheme in 1997. Till then I am not aware".

A clear suggestion was made to him that the defendants
1 and 2 borrowed a sum of Rs.2 lakhs from PW-1, for their business, and that it
has nothing to do with the sale of plot, in question.
In that connection, PW-2 stated,
"...It is not true to say that I arranged the loan with the plaintiff for
defendants. I do not know when the payment was made under Ex.A29. I only
learnt about it in 1997
on being informed by P.W.1."

A perusal of Ex.A-29, however, discloses that it is in the name of the 2nd
plaintiff, i.e. the sole appellant herein. By that time, she was not married to
PW-1. On the other hand, PW-1 had his wife and two grown up children,
plaintiffs 3 and 4, who are added as respondents 3 and 4 in this appeal. It has
come on record that
PW-1 filed suits against his first wife for declaration, that the properties,
which are in the name of his wife, belong to him.
That only indicates that, he was indulging in benami, or speculative
transactions, and he did not even spare his family members, in this regard.
This is fortified from the fact that his son, the 3rd plaintiff,
did not hesitate to support the case of the defendants 1 and 2,
as a witness.
Since Ex.A-29 is in the name of the 2nd plaintiff, and she was not at all
related to PW-1, by the time, Ex.A-29 was executed, it was she, who could have
sought enforcement thereof, provided she proved the contents thereof, and
payment of consideration. Even that depended upon the existence of saleable
interest in favour of the DW-1, vis--vis the property. That, however, did not
happen. Though PW-1 pleaded that Vasantha Kumari (2nd plaintiff), purchaser
under Ex.A-29 was his nominee, he did not choose to implead her in the suit, as
a party. It is a different matter that she came on record as legal
representative of PW-1.
The alleged promise of DW-1 to sell the suit schedule property is
contained in Ex.A-29. PW-1 does not figure anywhere in it, and there is no other
external record, about payment of consideration, or nomination by PW-1. The
basis for him to require DW-1 to execute the sale deed in his favour are, the
letter and affidavit said to have been submitted by her, marked as Exs.A-31 and
32.
Even otherwise, PW-1 could have enforced his rights, if any, only by

a) proving Ex.A-29, by examining Vasantha Kumari,
2nd plaintiff, the so-called purchaser under it, and establishing payment of
consideration, under it;
b) by proving his nomination by the 2nd plaintiff, that too, with the approval
of DW-1; and
c) proving Exs.A-31 and 32.

Viewed from any angle, the precedence and evidence of Vasantha Kumari, the
2nd plaintiff, becomes pivotal in the suit.
In the first instance, she was said to be a nominee and at the second instance,
she is said to have named PW-1 as her nominee. However, PW-1 did not implead
Vasantha Kumari, much less, did he examine her, as a witness. She came into
picture only after the death of PW-1, claiming to be his second wife. Being not
a party to Ex.A-29, there was no way, that PW-1 could have proved it. Assuming
that there did not exist any controversy about execution of Ex.A-29, PW-1 could
have derived rights only through any document executed in his favour by the 2nd
plaintiff. Since nothing of that sort is forthcoming, there is absolutely no
connectivity between PW-1 and DW-1, in this regard.
If Exs.A-31 and 32 are proved, there may be scope for ignoring for a
while, the lapses on the part of PW-1 in providing necessary links. Ex.A-31 is
a letter, and Ex.A-32 is an affidavit, said to have been submitted by DW-1,
before the Society, expressing her desire to transfer her rights over the plot
in question, in favour of
PW-1. These two would be, in supercession of similar letter and affidavit, said
to have been submitted by DW-1, in favour of the
2nd plaintiff, in the year 1994. It is important to notice that the
2nd plaintiff has been described as sister of DW-1, in the first set of letter
and affidavit, whereas in the second set of letter and affidavit, PW-1 is shown
as the brother of DW-1. The subsequent event is that there was a marriage
between two persons described as brother and sister of DW-1. This was rightly
commented by the trial Court, to demonstrate the dubious nature of the entire
exercise, undertaken by PW-1, and the 2nd plaintiff.
DW-1 categorically denied the execution of Exs.A-31 and 32. Obviously for
that reason, the documents were sent for examination by an expert, i.e. DW-4.
Exs.A-31 and 32 contained two signatures each, of the same individual, in the
name of Madhavi, i.e. DW-1. Another important document which, DW-1 disputed, is
Ex.A-39, the letter of authorization addressed to the Sub-Registrar for
collecting the registered sale deed. After undertaking thorough analysis, and
after comparing with the undisputed signatures, DW-4 found that one signature
each, on Exs.A-31 and 32 and the only signature on Ex.A-39, are not that of DW-
1. With this, the whole edifice of evidence of PW-1 collapses.
The contention of the learned Senior Counsel for the plaintiffs is that,
even if one out of the two signatures on Exs.A-31 and 32 were found to be
genuine, the documents can be taken as proved. A person, who has no regard for
truth, and who is prepared to go to the extent of forging the signatures of the
persons; does not deserve any relief, much less equitable relief of specific
performance of agreement of sale.
So far as payment of consideration is concerned, it is evident that Ex.A-
29 was silent about this. It has only stipulated the amount. Even if that
document is to be taken on its face value and as proved, it was only Vasantha
Kumari, who was supposed to make the payment. The case of PW-1 is that Vasantha
Kumari was only his nominee. If that were to be so, he ought to have
established payment of consideration. The relevant portions of his evidence
were already extracted in the preceding paragraphs of the judgment. PW-1
categorically stated that he cannot state as to when the amount was paid.
Obviously because there is no record to show payment of amount, and the payment
was not reflected in his income tax returns for the relevant period,
he invented a dubious method of making a self declaration, before the
authorities of the Income Tax Department in the year 1997, stating that he paid
the amount of Rs.2 lakhs in the year 1992.
There cannot be any better instance of treating the system of adjudication as
gullible or pliable, than this. If he paid the consideration and nominated
another person as the purchaser, there should have been a recital, to that
effect.
The deposition of PW-2 has added further dimensions to the controversy.
According to him, the amount was paid by the time, the agreement was executed.
If that were to be so, there would have been recital to the effect that the
amount is paid. The person who drafted the agreement is none other than an
Auditor. When PW-1 has stated that he cannot state as to when the consideration
was paid, and there is nothing on record to prove it, it can safely be concluded
that PW-1 failed to prove the payment of consideration under the agreement.
Once the important and pivotal element is missing, there is no way, that the
agreement, even if existing,
can be enforced.
Mere payment of money by one individual to another, does not, by itself,
bring about the transaction of a particular description. It is only when there
exists unity of opinion, or what is commonly known in the realm of contracts, as
consensus ad idem, that it can be treated as a consideration of the contract of
a particular description. The money can certainly constitute the consideration,
in a given transaction. However, it is only when it is paid by one,
to another, with a specific understanding, that it is the consideration for a
contract, that the contract can be said to have come into existence. The money
paid for one purpose, cannot be treated as consideration for another.
Even if a
person pays the amount to another, with an idea that it is the consideration for
purchase of an item of property, law would recognize such event, if only the
person who paid the amount establishes that the one, who received it, was also
of the same idea and understanding.
The doctrines of "privity of consideration"
and "antecedent debt as consideration" and past consideration also come into
play. Assuming that PW-1 paid any amount to DW-1, it was "voluntary", vis--vis
the sale transaction, since DW-1 received it as debt, and not as consideration
(See Chitty on Contracts, Vol. I Chapter III & Mulla - Indian Contract and
Specific Relief Acts, Vol. I, page 104).
In the instant case, PW-1 was not clear as to when he paid the amount.
Ex.A-29 was not in his favour. There is no recital in that document also, about
payment of amount. The defendants 1 and 2 categorically stated that they
received a sum of Rs. 2 lakhs, as loan, from the respondents, long ago, for
their necessity, and paid the same. In case PW-1 wanted to treat the money paid
by him, as the consideration for the land, heavy burden rested upon him,
to establish the relevant factors. However, he miserably failed,
in this front. Further, DW-1 did not derive any right, much less saleable
interest, vis--vis the land, by the time, Ex.A-29 was said to have been
executed.
Therefore, points (a), (b) and (c) are answered against the plaintiff
(appellant).
Point (d):
The relief of specific performance of an agreement of sale is equitable in
nature. Section 20 of the Specific Relief Act enunciates the principle, that
guide the grant or denial of the relief. Even if an agreement is proved, the
Court is required to take into account, the conduct of the parties, the fairness
in the deal, and the entitlement of the plaintiff, while framing the relief. The
Court can never extend its helping hand to a person, who indulges in dubious
transactions, and attempts to deceive the innocent persons. There are several
factors, which militate against the plaintiffs in this case. To illustrate:

a) The only plaintiff, who instituted the suit, did not figure anywhere in the
agreement, Ex.A-29, nor did he refer to the agreement in the plaint, much less
did he file it at the initial stage;
b) the person, in whose name, agreement Ex.A-29 was executed, i.e. Vasantha
Kumari, was neither impleaded as a party, nor was examined as a witness;
c) PW-1 not only failed to prove payment of consideration, but also claimed ignorance about it.
d) the value of the suit schedule property was not less than Rs.1,000/- per sq.yard, at the relevant point of time, and the consideration would have been,more than Rs.10 lakhs in 1991 (the prevailing market value is, in the range of Rs.30,000/-
to 40,000/- per sq.yard, i.e. about Rs.3.5 to Rs.4.5 crores), whereas the consideration mentioned in the agreement of sale is Rs.2 lakhs, that too,without any advance payment, or proof as to subsequent payment;
e) The clear finding of the trial Court to the effect that the documents Exs.A- 32 and A-39, which constituted the basis for the plaintiffs to claim rights, are fabricated; and
f) the conduct of the plaintiff in fabricating a letter of authorization, to get the original sale deed executed
by the Society in favour of DW-1.

These and other factors collectively lead to inescapable conclusion that
the plaintiff is not entitled for the relief of specific performance of
agreement of sale.
DW-1 did not have any saleable interest, much less title by
the time, the so-called agreement of sale, Ex.A-29 was came into existence.
The
point is answered accordingly.

Point (e):

In all fairness, the defendants 1 and 2 admitted that they borrowed a sum
of Rs.2 lakhs from the PW-1, when they are facing financial difficulty in
running an industry.
PW-1 fabricated all the documents, once the Society
executed the sale deed, Ex.A-30, on 04-01-2002, in favour of DW-1.
He swung into action and brought in
existence, the letter of authorization, Ex.A-38, got the original sale deed, and
then started demanding execution of the sale deed in his favour. The letter was
addressed to the 2nd defendant, who admittedly did not have any right in the
property. The latter promptly replied, stating that they have never undertaken
to sell the plot, and repaid the amount, borrowed by them, through a pay order.
However, PW-1 refused to receive the amount. The record discloses that PW-1
took lead in arranging for the purchase of stamps etc., at a time when DW-1 was
not in India, and incurred some expenditure.
Though there is some doubt as to
the aggregate of the amount, which the defendants 1 and 2 owe to PW-1, we are of the view that a decree can be passed for refund of a sum of Rs.15,21,096-10 ps. to the plaintiffs 2, 3 and 4.

Hence, the appeal is partly allowed, upholding the decree, to the extent
it has denied the specific performance of agreement of sale, but granting the alternative relief of directing refund of a sum of Rs.15,21,096-10 ps. to the plaintiffs 2, 3 and 4, jointly, leaving it open to them to determine their
respective shares, subject to the handing over the original sale deed of the
suit property to the 1st defendant. The amount shall carry interest @ 10% per annum from the date of the decree, till the date of its realization.

The miscellaneous petition filed in this appeal shall also stand disposed
of.

There shall be no order as to costs.

________________________
L. NARASIMHA REDDY, J.

______________________
K. G. SHANKAR, J.
Dt.29-04-2013.

Section 21-A (1A) of the Act-Andhra Pradesh Co-Operative Societies Act, 1964 disqualifies a person having more than two children for election or for continuing as a member of the Committee. The disqualification stipulated in this provision, thus, may occur at two stages, namely; at the stage of election of the member or after the election while continuing as a member. A contention was raised that such a disqualification can only be decided by way of an Election Petition. The Division Bench while repelling the said contention, referred to the second limb of Sub-section-(1A) of Section-21-A of the Act and held that as a person having more than two children is rendered disqualified even for continuance as a member of the committee after election, such a dispute need not necessarily be decided only by way of an Election Petition. This judgment, far from supporting the petitioners' case, fortifies the view of this Court that two different mechanisms have been provided for deciding on the disqualification of a member depending upon the stage at which the dispute is raised. For the above-mentioned reasons, the Writ Petition is wholly meritless and the same is, accordingly, dismissed.

reported / published in http://judis.nic.in/judis_andhra/filename=9893
HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY

WRIT PETITION No.13024 of 2013

26.04.2013

Between:

Soma Venkata Rao, S/o Chinna Rama Kottaiah and two others...... Petitioners

And

Velamuri China Ayyapa Reddy,S/o Hanimi Reddy and eight others......Respondents

Counsel for the Petitioners: Sri V.R.Machavaram

Counsel for Respondent Nos.5 to 8: GP for Co-Operation

<Gist:

>Head Note:

?CITATIONS:
NIL

ORDER:

This Writ Petition is filed for a Certiorari to quash O.P.No.20 of 2013
pending on the file of the Andhra Pradesh Co-Operative Tribunal, Vijayawada (for
short 'the Tribunal') and declare that the Tribunal has no jurisdiction to
entertain the said O.P. as an election dispute.
Petitioner Nos.1 to 3 were elected as President, Vice-President and
Director, respectively, of the Gurajala Primary Agricultural Co-Operative
Society (for short 'the society') in the recent elections. Respondent Nos.1 to
4, who are unsuccessful in the said elections, filed an Election Petition under
Section 61(3) of the Andhra Pradesh Co-Operative Societies Act, 1964 (for short
'the Act') before the Tribunal. The said Election Petition was entertained by
the Tribunal and registered as O.P.No.20 of 2013. Questioning the jurisdiction
of the Tribunal, the petitioners filed this Writ Petition.
At the hearing, Sri V.R.Machavaram, the learned counsel for the
petitioners, stated that the ground on which respondent Nos.1 to 4 filed the
Election Petition was that at the time of election of the petitioners they had
three children and that thereby, they have incurred disqualification for being
elected to the aforesaid society under Section 21-A(1A) of the Act. According to
the learned counsel, the disqualification of the petitioners has to be
determined by the General Body of the society under the Act and the Rules and
that the same cannot be a subject matter of an election dispute.
The learned Government Pleader for Co-Operation has opposed the above
submissions and stated that since the petitioners are allegedly ineligible for
being elected, such a dispute will constitute an election dispute.
I have carefully considered the respective submissions of the learned
counsel for the parties.
Section 61 of the Act deals with settlement of disputes. Sub-section 3
thereof envisages that every dispute relating to, or in connection with, any
election to a committee of a society shall be referred for decision of the
Tribunal having jurisdiction over the place where the main office of the society
is situated, whose decision thereon shall be final. Under Sub-section-4 thereof,
such dispute shall be raised only after the date of declaration of the result of
the election.
Section 21-A (1A) of the Act disqualifies a person having more than two
children for election or for continuing as a member of the Committee. The
disqualification stipulated in this provision, thus, may occur at two stages,
namely; at the stage of election of the member or after the election while
continuing as a member. In the present case, the allegation against the
petitioners is that by the time of their election as members to the aforesaid
society, they already had three children. Therefore, it is a case pertaining to
the first stage disqualification i.e., disqualification for being elected as
members.
As noted herein before, any dispute relating to, or in connection with the
election to a committee of a society has to be decided in an Election Petition.
The dispute as to
whether the petitioners were eligible to be elected as members
of the Managing Committee of the said society or not, thus, squarely falls
within the election dispute under Section 61(3) of the Act.
It is only in cases
where such election disputes are not raised, or where the persons elected have
incurred disqualification after their election and while continuing as members,
that the procedure envisaged under Rule-24 of the Rules is required to be
followed.
Under this Rule, the Chief Executive Officer or the President, where
there is no Chief Executive Officer, shall promptly inform the Registrar of the
disqualification of the member(s), wherever such disqualification would not
automatically occur, and place a report on such disqualifications in the General
Body meetings for information and thereafter, the General Body has to pass a
resolution declaring a person as disqualified to be a member of the committee of
the society.
Thus, under the Scheme of the Act and the Rules, the Tribunal has
jurisdiction and competence to entertain an election dispute on the allegation
that at the time of election of a candidate, he incurred disqualification under
Section-21-A (1A) of the Act.
The Division Bench judgment, dated 16.12.2005, of this Court in Pidugu
Madhu Vs. The Deputy Registrar of Co-Operative Societies, Kavali and three
others in Writ Appeal No.2443 of 2005 relied upon by the learned counsel is of
no avail to the petitioners. That was a converse case, where the proceedings
were initiated for disqualifying a member of the Managing Committee much after
the elections were held.
A contention was raised that such a disqualification
can only be decided by way of an Election Petition.
The Division Bench while
repelling the said contention, referred to the second limb of Sub-section-(1A)
of Section-21-A of the Act and held that as a person having more than two
children is rendered disqualified even for continuance as a member of the
committee after election, such a dispute need not necessarily be decided only by
way of an Election Petition.
This judgment, far from supporting the petitioners' case, fortifies the view of
this Court that two different mechanisms have been provided for deciding on the
disqualification of a member depending upon the stage at which the dispute is
raised.
For the above-mentioned reasons, the Writ Petition is wholly meritless and the
same is, accordingly, dismissed.
As a sequel to dismissal of the Writ Petition, WPMPs, if any, pending are
dismissed as infructuous.

___________________________
JUSTICE C.V.NAGARJUNA REDDY
26th April, 2013

Saturday, June 1, 2013

Payment of family pension to the widowed/divorced daughter, irrespective whether she became widowed/divorced daughter either before or after the retirement of employee, provided the spouse predeceases the pensioner and sons/daughters become ineligible for the Family Pension; and Smt. Sajida Bano, who has been settled and paid family pension, as she is rightly entitled to be paid the same. Unfortunately, Smt Sajida Bano died on 06.03.2012. Hence, the question of payment of family pension to any other member in the family would not simply arise. Family pension, to my mind, is liable to be paid either to the spouse of the deceased pensioner, provided such a spouse is surviving, or to any other eligible family members organized to fall in category I and category II of G.O.Ms.No.315. For others to secure eligibility for sanction of family pension, the spouse must pre-decease the pensioner but not otherwise. In the instant case, the spouse of the pensioner Smt. Sajida Bano survived him and hence, the petitioner is not eligible to be granted family pension and the fact that the Corporation rejected her candidature on some other that ground is of not much of a legal significance for her claim to be upheld.

reported in / published in http://judis.nic.in/judis_andhra/filename=9882

THE HON'BLE SRI JUSTICE NOOTY RAMAMOHANA RAO

WRIT PETITION No.13243 of 2013

29-04-2013

MISS MEHER BANO .. PETITIONER

GOVERNMENT OF ANDHRA PRADESH REP BY ITS PRINICIPAL SECRETARY TO GOVERNMENT
ENERGY DEPARTMENT, A.P. SECRETARIAT, HYDERABAD AND OTHERS .. RESPONDENTS

Counsel for the petitioner : Sri Syed Mushtaq Ahmed

Counsel for the respondents: Sri P. Laxma Reddy

<Gist:

>Head Note:

?CITATIONS:

O R D E R:
This Writ Petition is preferred by a 51-year-old daughter of Sri Syed
Khundmir, who had retired on 31.03.1991 after serving as a Personnel Officer
with the Andhra Pradesh Transmission Corporation (AP TRANSCO) at Hyderabad.
Prior to his death Sri Syed Khundmir filed his pension papers with the AP
TRANSCO disclosing his family particulars.
He declared Smt. Sajida Bano as his
wife and also disclosed the names of his six daughters and one son, duly
mentioning the respective dates of birth of those individuals.
It is not in
dispute that Sri Syed Khundmir received all his pensionary benefits so long as
he was alive and he appears to have died on 16.09.2004.
Thereafter, Smt. Sajida
Bano, the widow of Sri Syed Khundmir has been paid the family pension by the AP
TRANSCO, as she is eligible to receive the same.
Smt Sajida Bano died on 06.03.2012.
Therefore, the writ petitioner herein has filed an application for
grant of family pension to her on the ground that she was the unmarried daughter of Sri Syed Khundmir and hence, she is entitled to be granted the family pension.
She also enclosed family members certificate given by the Tahsildar,
Bandlaguda, Hyderabad District, where the names of five daughters and the son of
Sri Syed Khundmir were noted. Excepting the petitioner, rest of the daughters
were declared as house wives being married women, by the Tahsildar. The son of
Sri Syed Khundmir was also married and he is employed in a private organization
as per the said certificate. Since the petitioner was the only family member,
who remained unmarried, she sought for payment of family pension.
That was
rejected by the AP TRANSCO, through their communication dated 31.07.2012. It is
observed in the said order that the details of the family members and their
status submitted by the original pensioner, namely Sri Syed Khundmir are not
tallying with the family particulars furnished by the petitioner herein and
hence, the AP TRANSCO has declared that the petitioner is not eligible for
sanction of family pension as the unmarried daughter, in terms of T.O.O Ms. No.
333 dated 12.11.2010.
Learned counsel for the petitioner would urge that this
action of the respondents is grossly illegal and is contrary to the scheme
adopted by the AP TRANSCO for sanction of pension as well as family pension.
Further, the particulars relating to the petitioner, if, have been furnished by
the father wrongly, the petitioner is very much entitled to have correct
information reflected in the records relating to the pensioner and hence, the
respondents have committed a gross irregularity in not taking into account and
consideration the status certificate furnished by the Tahsildar, Bandlaguda, who
did so upon conducting a detailed enquiry into the matter.
Heard Ms. Sridevi, learned counsel deputizing for Sri P.
Lakshma Reddy, learned Standing Counsel, who has accepted notice on behalf of
the respondents.
The Transmission Corporation of Andhra Pradesh has announced its policy decision
through T.O.O Ms. No.333, dated 12.11.2010 adopting the orders passed by the
State Government contained in their G.O. Ms. No. 315, Finance (Pension-I)
Department, dated 07.10.2010 in respect of the employees of the erstwhile Andhra
Pradesh State Electricity Board who joined the service of the Transmission
Corporation prior to 01.02.1999 and presently working in AP TRANSCO and also
pensioners/family pensioners of AP TRANSCO.
The order passed by the State
Government in their G.O.Ms. No. 315 Finance (Pension-I) Department, dated
07.10.2010 is placed at page 42 of the paper book filed along with the Writ
Petition.
In paragraph 3 thereof, the recommendations made by the IX Pay
Revision Commission together with the Government of India orders and the
requests of various associations have been summarized and they read as under.
" The Ninth Pay Revision Commission, after due consideration of the existing
Family Pension Rules and Government of India orders and the requests of various
Associations, inter alia, recommended the following in respect of sanction of
Family Pension.

(i) Categorisation of eligible beneficiaries of family pensioners into two
categories as per the orders issued by Government of India in their O.M.
F.No.38/37/08- P&PW (A); dated 02.09.2008 of Ministry of Personnel, Public
Grievances & Pensions, Department of Pension & Pensioners' Welfare, New Delhi;
(ii) Continuation of payment of family pension to the childless widow even after
her remarriage as per the orders issued by Government of India in their O.N.F.No.38/37/08- P&PW (A), dated 02.09.2008 of Ministry of Personnel, Public Grievances & Pensions, Department of Pension & Pensioners' Welfare, New Delhi;
(iii) Payment of family pension to the widowed/divorced daughter, irrespective
whether she became widowed/divorced daughter either before or after the retirement of employee, provided the spouse predeceases the pensioner and sons/daughters become ineligible for the Family Pension; and
(iv) Sanction of family pension to the daughters of deceased pensioners who became widowed/divorced either before or after the date of issue of the G.O.Ms.No.523 i.e. 22.06.2004."
Thereafter, in paragraph 4 of the said order, it was declared that the
government decided to accept the above recommendations of the Pay Revision
Commission and hence, issued the orders contained therein.
According to the
learned counsel for the petitioner, unmarried or widowed or divorced daughters
are organized to fall in category II, whereas a son/daughter (including widowed
daughter) up to the date of his/her marriage, remarriage or till the date he/she
starts earning or till the age of 25 years, whichever is the earliest, is
classified to fall in category I. According to the learned counsel for the
petitioner, since the case of the petitioner falls under category II,
irrespective of the fact that she is beyond 25 years of age as of now, she must
be paid the family pension by the respondents.
I am afraid, this contention does not hold any merit. As was noticed supra, IX
Pay Revision Commissioner has recommended payment of family pension to the
widowed/divorced daughter, irrespective whether she became widowed/divorced
either before or after the retirement of the employee, provided the spouse
pre-deceases the pensioner and the other sons/daughters become ineligible for
family pension.
Therefore, for grant of family pension in favour of either an
unmarried daughter or a widowed daughter or a divorced daughter, the condition
pre-requisite was the death of the spouse of the pensioner.
If the spouse of
the pensioner is surviving him/her after his/her death, it is that spouse, who
is eligible to receive the family pension, but not any other person, either
falling in category I or category II.
As was noticed supra, in the instant
case, the pensioner Sri Syed Khundmir died on 16.09.2004 leaving behind Smt.
Sajida Bano as his widow.
It is
Smt. Sajida Bano, who has been settled and paid
family pension, as she is rightly entitled to be paid the same.
Unfortunately,
Smt Sajida Bano died on 06.03.2012.
Hence, the question of payment of family
pension to any other member in the family would not simply arise.
Family
pension, to my mind, is liable to be paid either to the spouse of the deceased
pensioner, provided such a spouse is surviving, or to any other eligible family
members organized to fall in category I and category II of G.O.Ms.No.315.
For
others to secure eligibility for sanction of family pension, the spouse must
pre-decease the pensioner but not otherwise.
In the instant case, the spouse of the pensioner Smt. Sajida Bano survived him
and hence, the petitioner is not eligible to be granted family pension and the
fact that the Corporation rejected her candidature on some other that ground is
of not much of a legal significance for her claim to be upheld. I therefore, do
not find any merit in this writ petition and accordingly, the same is dismissed
at the admission stage. No costs.
Consequently, the miscellaneous applications, if any shall also stand dismissed.

________________________
NOOTY RAMAMOHANA RAO, J
29th April 2013

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