Shikshan Sevak Covered Under MEPS Act Protection: Bombay High Court Quashes Oral Termination
The Bench held that the management failed to prove non-availability of post or objective assessment of work under Rule 15(6).
Justice Amit Borkar, Bombay High Court
The Bombay High Court has held that a Shikshan Sevak covered under the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (MEPS Act) cannot be terminated arbitrarily on a groundless plea of "non-availability of vacancy" when official records show that a sanctioned vacant post existed.
Setting aside an order of the School Tribunal, the Bench declared the oral termination of a Shikshan Sevak illegal and directed her reinstatement with full continuity of service and consequential benefits, though back wages were denied due to the absence of a specific pleading on non-employment.
A Bench of Justice Amit Borkar observed, “The Tribunal failed to appreciate protection available to a Shikshan Sevak under the amended provisions of the MEPS Act. It also overlooked the material regarding sanctioned vacancy and failed to examine whether mandatory requirement of objective assessment under Rule 15(6), as explained by the Full Bench, was complied with. Therefore, the impugned judgment suffers from error and cannot be allowed to stand…On the material available, stand of the Management regarding non-availability of vacancy is contradicted by the communication issued by the Education Inspector. At the same time, there is no material showing objective assessment of the petitioner's work as required by Rule 15(6). The Tribunal also failed to examine these material aspects”.
Senior Advocate Mihir Desai appeared for the petitioner and A.A. Purav, AGP appeared for the respondent.
The petitioner, Dipti Madhukar Sheth, was selected through a regular recruitment process pursuant to a December 2010 advertisement and appointed as a Shikshan Sevak on January 10, 2011, at Seth G.H. High School, managed by the Borivali Education Society. The appointment was made against a sanctioned post that had fallen vacant due to the retirement of a regular teacher in June 2010.
However, the school management failed to properly pursue the proposal for approval of her appointment with the Education Inspector. Subsequently, on August 31, 2012, when the petitioner was on the verge of completing her three-year period, the Headmistress orally informed her not to report for duty from September 1, 2012, without issuing any written order or notice.
While the school management claimed her services were discontinued due to non-availability of a vacancy following the absorption of surplus teachers, official communications from the Education Inspector confirmed that one sanctioned vacant post was available in the school's official records.
Rejecting the management's argument that a Shikshan Sevak has no statutory protection prior to completing three years of probation, the High Court relied on the Coordinate Bench ruling in Principal, Our Lady of Salvation High School v. Rashmi Upadhyay (2009) 3 Bom CR 401.
“If termination had been based upon unsatisfactory performance, then principles laid down by the Full Bench would apply. But where the Management says that there was no vacancy, then this Court has first to examine whether such vacancy was not available. Unless this fact is established, reliance upon principles governing probation cannot sustain the termination”, the Bench said.
“Therefore, real issue is not whether the petitioner was probationer or whether she had become confirmed. Real issue is whether the Management has shown that discontinuance of the petitioner's service was made according to provisions governing a Shikshan Sevak and whether reasons assigned by the Management are supported by the record…”, the Bench noted.
Cause Title: Dipti Madhukar Sheth v. Borivali Education Society & Ors. (Writ Petition No. 8021 of 2016)
Appearances:
Petitioner: Senior Advocate Mihir Desai with Advocates Sanskruti Yagnik and Rishika Agarwal.
Respondent: Himanshu Kode, Advocate, A.A. Purav, AGP.