Letters Patent Appeal No.32 of 2011,Writ Petition No. 941 of 2008

18th February, 2011

Petitioner Counsel: Shri R.N. DHORDE,V.R. DHORDE
Respondent Counsel: Shri SATYAJIT BORA,Shri D.R. KALE,Shri ANAND BHANDARI

Cases Cited:
Midnapore Peoples' Cooperative Bank Ltd. & others Vs. Chunilal Nanda & others, AIR 2006 SC 2190 [Para 6,11,12]
Sayyed Salim Sayyed Yusuf Vs. Hrushikesh Pralhad Patil, 2008(3) Bom.C.R. 544 [Para 6]
Surya Dev Rai Vs. Ram Chander Rai & others, 2003(4) ALL MR 761 (S.C.)=AIR 2003 SC 3044 [Para 6]
Shahu Shikshan Prasarak Mandal Vs. Lata P. Kore, 2008 ALL SCR 2496=2008 AIR SCW 7409 [Para 6,9]
M.M.T.C. Limited Vs. Commissioner of Commercial Tax & others, 2009) 1 SCC 8 [Para 6]
Shah Babulal Khimji Vs. Jayaben D. Kania, AIR 1981 SC 1786 [Para 11]
Central Mine Planning and Design Institute Ltd. Vs. Union of India, (2001) 2 SCC 588 [Para 12]

JUDGMENT

D.B. Bhosale, J.:- Heard learned counsel for the parties.

Admit.

Appeals are heard finally at the stage of admission with the consent of learned counsel for the parties.

2. These two letters patent appeals are basically directed against the order dated 4.12.2009 passed in Writ Petition No.941/2009 whereby this Court granted interim relief in terms of prayer clause (D). In the prayer clause (D), the respondent-writ petitioner prayed for stay of the order passed by the School Tribunal. The appellant also sought review of the order dated 4.12.2009 by filing Civil Application No.636/2010 in Writ Petition No.941/2009 and Civil Application No.637/2010 in Writ Petition No.905/2009. Both the civil applications seeking review of the order dated 4.12.2009 were rejected vide order dated 23.7.2010. This order is also under challenge in the appeals.

3. Writ Petition No.941/2009 has been filed by the respondent-trust whereas Writ Petition No.905/2009 has been filed by the respondent-Apparao Patil, both challenging the judgment and order rendered by the School Tribunal dated 17.10.2008 in the appeal filed by the appellant challenging her oral termination order dated 11.10.2007. The said order, terminating the appellant's services as Head Mistress, has been quashed and set aside by the Tribunal. The Tribunal has directed respondent-trust to reinstate the appellant as Head Mistress in Shri Saibaba Secondary and Higher Secondary School with continuity of service from the date of her oral termination. They are further directed to pay full back wages to the appellant from the date of termination with all consequential benefits. This Court admitted both the writ petitions and granted interim relief in terms of prayer clause (D) in the writ petitions.

4. Before we proceed further, it would be relevant to mention few undisputed facts. The appellant was initially appointed in primary school run by respondent -trust vide order dated 3.10.1989 as Assistant Teacher. Lateron she was appointed as Head Mistress of the said school. In 2002, having regard to the qualification of the appellant, she was appointed in Shri Saibaba Secondary and Higher Secondary School (for short "the said school"), run by respondent-trust, as Assistant Teacher. Since 2000, the post of Head Master in the said school was vacant and in view thereof in 2002, the appellant was appointed as in-charge Head Mistress. Till then, respondent-trust did not appoint either respondent-Apparao Patil, who claims to be a senior most teacher in the said school, or any other senior teacher as Head Master, and chose to keep the said post vacant till the appellant was appointed in 2002. The said appointment was approved by the Education Officer vide order dated 6.5.2004, as contemplated by Rule 3 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (for short "MEPS Rules"), and she continued to work as full-fledged Head Mistress of the said school till she was orally terminated on 11.10.2007 by respondent-trust. None of the senior teachers in the said school including respondent-Apparao Patil, made any grievance either in 2002, when she was appointed as incharge Head Mistress, or in 2004 when her appointment as Head Mistress was approved by the Education Officer. The order of approval dated 6.5.2004, clearly makes reference to "no objection" given by all senior teachers in the said school in favour of the appellant's appointment as Head Mistress. The respondent-trust has not denied the "no objections" given by senior teachers as mentioned in the letter / order of approval. Respondent-Apparao Patil claims that for the first time on 25.9.2006, he made representation to respondent-trust and the Education Officer making grievance of her appointment as Head Mistress denying his claim. However, thereafter he did not approach either the Tribunal or the Education Officer or any other forum taking exception to her appointment as Head Mistress and kept quiet for about 4/5 years. On 19.6.2007, the appellant proceeded on medical leave, and claims that when she tried to resume her duties on 11.9.2007, she was not allowed and was ultimately orally terminated on 11.10.2007. It appears that in her absence, respondent-Apparao Patil was given charge of the Head Master of the said school.

5. It is against this backdrop, we have heard learned counsel for the parties and with their assistance, gone through the entire record placed before the Court. Learned counsel for respondent-trust at the outset invited our attention to their reply filed before the Tribunal and submitted that the claim of the appellant that she was terminated, is not correct. He submitted, as a matter of fact, they did not terminate her either on 11.10.2007 or before that. According to respondent-trust, he submitted, after the appellant proceeded on medical leave on 19.6.2007, she did not turn up or try to resume her duties as Head Mistress. He further submitted that she did not place on record a medical certificate despite the same was demanded by the respondent-trust. However, to our specific query, he fairly admitted that non production of medical certificate was not the ground for either not allowing her to resume or terminate her services. In short, he submitted that respondent-trust was left with no option but to appoint respondent-Apparao Patil as in-charge Head Master since the appellant did not turn up. Shri Anand Bhandari, learned counsel for respondent-Apparao Patil, on the other hand, submitted that her appointment as Head Mistress in 2002 and, thereafter the approval granted by the Education Officer on 6.5.2004 was illegal inasmuch as she was not eligible to be appointed on the said post. In other words, he submitted that her appointment as Head Mistress itself was illegal and, therefore, her reinstatement by the impugned order is bad in law. In support of this contention, he invited our attention to Rule 3 of the MEPS Rules and submitted that the appellant did not fulfill the requirement under this Rule to be appointed as Head Mistress in the school. He then submitted, though the Education Officer granted approval on the basis of purported "no objections" given by all senior teachers in writing, including respondent-Apparao Patil, no such letters were produced on record. Though he tried to submit that respondent-Apparao Patil did not give such letter, he could not place anything on record in support of his contentions. More over, there was no denial of having given such letter on affidavit or in the pleadings.

6. Learned counsel for respondent-Apparao Patil, after addressing the Court on merits and while concluding his arguments, submitted that the letters patent appeals are not maintainable against the order impugned, it being interlocutory in nature. On the other hand, Shri R.N. Dhorde, learned counsel for the appellant, submitted that the order impugned, though interlocutory, determines the rights of the parties finally and hence the letters patent appeals are maintainable. Learned counsel for the parties, however, have not placed any judgments of either this Court or of the Supreme Court in support of their submissions on this point, though oral reference was made to the judgment of the Supreme Court in Midnapore Peoples' Cooperative Bank Ltd. & others V/s Chunilal Nanda & others (AIR 2006 Supreme Court, 2190). They did not place even this judgment before us. Both sought liberty to place judgments in support of their arguments on the point of maintainability of appeals, and accordingly, the following judgments are placed on record by learned counsel for the parties on 9.2.2011 :

[1] Midnapore Peoples' Cooperative Bank Ltd. (supra),

[2] Sayyed Salim Sayyed Yusuf V/s Hrushikesh Pralhad Patil 2008 (3) Bom.C.R., 544,

[3] Surya Dev Rai V/s Ram Chander Rai & others (AIR 2003 SC 3044) : [2003(4) ALL MR 761 (S.C.)],

[4] Shahu Shikshan Prasarak Mandal V/s Lata P. Kore (2008 AIR SCW 7409) : [2008 ALL SCR 2496], and

[5] M.M.T.C. Limited V/s Commissioner of Commercial Tax & others (2009) 1 SCC 8

7. Keeping the undisputed facts in view, it is clear that the respondent-trust, for the reasons best known to them, did not appoint respondent-Apparao Patil, who was senior-most teacher in the said school, or any other senior teacher as Head Master till the appellant was appointed as Head Mistress in 2002. Admittedly, the appellant was holding the post of Head Mistress since 2002 till she was orally terminated on 11.10.2007 and that the respondent-Apparao Patil was working as Assistant Teacher under her. It has also come on record that initially the approval sought to the appointment of the appellant was rejected and then it was granted by the Education Officer vide order dated 6.5.2004. The order clearly shows / records that her appointment as Head Mistress was approved in view of the no objection given in writing by all senior teachers as contemplated by Rule 3 of the MEPS Rules. In view thereof, the Tribunal, after perusing the entire material, has observed that her appointment was made after following the due procedure and complying with all the requirements.

8. The interim order of stay, impugned in these appeals, records two grounds. Firstly, respondent-Apparao Patil is senior in service to the appellant and that the appellant was transferred to the said school in 2002 on condition that she would lose her seniority and would be treated as junior most, and secondly, on the ground that the appellant failed to produce medical certificate in support of her case that she was prevented from joining duty on account of medical ground. It is pertinent to note that these were not the grounds for either terminating the appellant as Head Mistress or for not allowing her to resume her duties as Head Mistress in October 2007. To our specific query, made to learned counsel for the respondent-trust, as to what was the ground on which they either terminated or did not allow the appellant to resume duties, the only answer given by him was that they never terminated her services and that she never approached the respondent-trust to resume her duties, as claimed by her. Insofar as the submission of learned counsel for respondent-Apparao Patil that the appointment of the appellant as Head Mistress itself was illegal is concerned, there is no dispute that her termination was not on these grounds. On the contrary, it is the case of the respondent-trust, they did not terminate her services at all. The appellant, however, was not allowed to resume, and on 11.10.2007 it appears, she was finally told not to resume, which she took as oral termination and filed appeal u/s 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. The question, whether the appellant's appointment as Head Mistress was legal, was not the question before the Tribunal and hence the Tribunal had no occasion or reason to deal with the same. In other words, since legality of the appellant's appointment was not the issue before the Tribunal, the respondent-trust had no occasion / reason to place any material supporting respondent-Apparao Patil's stand, and as a result thereof, she had no opportunity to meet the challenge to her appointment on this ground. In view thereof, we need not examine the legality of her appointment in these appeals. The stand of respondent-Apparao Patil, before the Tribunal, was that right from beginning he was opposing the appellant's appointment on the ground that he was senior most teacher in the school, which is not consistent with his conduct. As against this, the Tribunal has recorded a finding of fact that before the appellant's appointment as Head Mistress, the respondent-trust had taken no objections from all senior teachers, relinquishing their claims on the post of Head Master. It appears that having regard to the no objection letters, the Education Officer granted approval to the appointment of the appellant. The respondent-Apparao Patil also kept quiet for 4/5 years, worked under the appellant and for the first time, before the Tribunal took such stand. That being so, on merits, we are satisfied that the interim order passed in the writ petitions in terms of the prayer clause (D) cannot be sustained.

9. That takes us to consider the preliminary objection as to maintainability of the letters patent appeals. It is now well settled that where the facts justify a party in filing an application either under Article 226 or 227 of the Constitution of India and the party chooses to file his application under both these Articles in fairness of justice to party and in order not to deprive him of valuable right of appeal, the Court ought to treat the application as being made under Article 226, and if in deciding the matter, in the final order, the Court gives ancillary directions which may pertain to Article 227, this ought not to be held to deprive a party of the right of appeal under Clause 15 of the Letters Patent where the substantial part of the order sought to be appealed against is under Article 226. Rule 18 of the Bombay High Court Appellate Side Rules read with Clause 15 of the Letters Patent provides for appeal to the Division Bench of the High Court from a judgment of the learned Single Judge passed on a writ petition under Article 226 of the Constitution. {See Shahu Shikshan Prasarak Mandal [2008 ALL SCR 2496] (supra)}.

10. Rule 3 in Chapter VI of the Bombay High Court Appellate Side Rules (for short "the Rules") provides that appeals under Clause 15 of the Letters Patent shall be placed for admission before a Division Bench. Rule 18 in Chapter XVII of the Rules deals with Single Judge's power to finally dispose of applications under Article 226 or 227. It states that notwithstanding anything contained in Rules 1, 4 and 17 of this Chapter, applications under Article 226 or under Article 227 of the Constitution (or applications styled as applications under Article 227 of the Constitution read with Article 226 of the Constitution) arising out of the orders passed under the Maharashtra Employees of Private Schools (Conditions of Judge Service) Regulation Act, 1977, (See Rule 18 (41), may be heard and finally disposed of by a Single. Rule 18 in Chapter XVII of the Rules read with Clause 15 of the Letters Patent provides for appeal to the Division Bench of the High Court from a judgment of the learned Single Judge passed in a writ petition under Article 226 of the Constitution.

11. Clause 15 of the Letters Patent provides for an appeal from "judgment" of a Single Judge. The concept of judgment fell for the consideration of the Supreme Court in Midnapore Peoples' Cooperative Bank Ltd. case (supra). In this judgment, one of the questions that fell for consideration was where such a decision on merits is rendered by an "interlocutory order" of learned Single Judge, whether an intra-Court appeal is available under Clause 15 of the Letters Patent. In this judgment, the Supreme Court made reference to its judgment in Shah Babulal Khimji V/s Jayaben D. Kania (AIR 1981 SC 1786). In that judgment, the scope of Clause 15 of the Letters Patent was considered and it was observed as under:

"The concept of a judgment as defined by the Code of Civil Procedure seems to be rather narrow and the limitations engrafted by sub-section (2) of section 2 cannot be physically imported into the definition of the word 'judgment' as used in Cl.15 of the Letters Patent because the Letters Patent has advisedly not used the term 'order' or 'decree' anywhere. The intention, therefore, of the givers of the Letters Patent was that the word 'judgment' should receive a much wider and more liberal interpretation than the word 'judgment' used in the Code of Civil Procedure. At the same time, it cannot be said that any order passed by a trial Judge would amount to a judgment; otherwise there will be no end to the number of orders which would be appealable under the Letters Patent. It seems to us that the word 'judgment' has undoubtedly a concept of finality in a broader and not a narrower sense. In other words, a judgment an be of three kinds -

(1) A final judgment ..

(2) A preliminary Judgment ....

(3) Intermediary or interlocutory judgment - Most of the interlocutory orders which contain the quality of finality are clearly specified in clauses (a) to (w) of Order 43, Rule 1 and have already been held by us to be judgments within the meaning of the Letters Patent and, therefore, appealable. There may also be interlocutory orders which are not covered by Order 43, Rule 1, but which also possess the characteristics an trappings of finality in that, the orders may adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceedings. Before such an order can be a judgment the adverse effect on the party concerned must be direct and immediate rather than indirect or remote ..... in other words every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned."

".......any discretion exercised or routine orders passed by the trial Judge in the course of the suit which may cause some inconvenience or, to some extent, prejudice one party or the other cannot be treated as a judgment, otherwise the appellate court (Division Bench) will be flooded with appeals from all kinds of orders passed by the trial Judge.

.......the interlocutory order in order to be a judgment must contain the traits and trappings of finality either when the order decides the questions in controversy in an ancillary proceeding or in the suit itself or in a part of the proceedings." (emphasis supplied)

12. Another judgment of the Supreme Court, which was considered in Midnapore Peoples' Cooperative Bank Ltd. case was Central Mine Planning and Design Institute Ltd. V/s Union of India (2001) 2 SCC 588 . In that case, Clause 10 of the Letters Patent of Patna High Court was considered by the Supreme Court. While dealing with a case where the award of Industrial Tribunal directing reinstatement and payment of partial back wages was challenged in a writ petition before the High Court of Patna, the workmen claimed interim relief u/s 17-B of the Industrial Disputes Act, 1947. The learned Single Judge, in that case, had directed the employer to pay full back wages to the workmen during pendency of the writ petition. That order was challenged in a letters patent appeal. The Division Bench held that the letters patent appeal was not maintainable as the order directing payment u/s 17-B was not a 'judgment'. That decision was reversed in Central Mine Planning and Design Institute Ltd. case holding that an interlocutory order passed in a writ proceedings directing payment u/s 17-B was a final determination affecting the vital and valuable rights and obligations of parties and, therefore, would fall under the category of intermediary or interlocutory judgment against which a letters patent appeal would lie. It is, thus, clear that every interlocutory order cannot be regarded as a 'judgment', but only those orders would be judgments, which are final determination affecting vital and valuable rights of the parties and which work serious injustice to the party concerned.

The Supreme Court in Midnapore Peoples' Cooperative Bank Ltd. case (supra) in paragraph 15, after carving out the categories of the interim orders / interlocutory orders, in paragraph 16 observed thus:

"The term 'judgment' occurring in Clause 15 of the Letters Patent will take into its fold not only the judgments as defined in Section 2(9) CPC and orders enumerated in Order 43, Rule 1 of CPC, but also other orders which, though may not finally and conclusively determine the rights of parties with regard to all or any matters in controversy, may have finality in regard to some collateral matter, which will affect the vital and valuable rights and obligations of the parties."

13. The writ petitions filed by the respondent-trust and the respondent-Apparao Patil are filed under Articles 226 and 227 of the Constitution of India and in view thereof, and having regard to Rule 3 and Rule 18(41) of the Rules, the appellant filed letters patent appeal against the interim orders passed in both the writ petitions whereby the order of the Tribunal has been stayed.

14. In the present case, the Tribunal allowed her appeal under Section 9 of the MEPS Act and directed the respondent-trust to reinstate the appellant as Head Mistress. That order has been stayed in the writ petition. The learned Single Judge, in the order, has observed / recorded that the respondent - Apparao Patil is senior to the appellant, thereby, at the stage of admission itself, held that the appellant being junior, cannot stack her claim over the post of Head Master, when that is not an issue in these proceedings. This, in our opinion, would undoubtedly materially and directly affect the final decision in the main case apart from the fact that it would also affect vital and valuable right of the appellant and it would work serious injustice to her for more than one reason. Firstly, because the appellant was admittedly appointed as Head Mistress and her appointment was approved and she was working on the said post for more than 5 years; secondly, the respondent-trust could not and did not give any reason for her termination. On the contrary, according to them, they never terminated her services as Head Mistress and in fact she did not turn up or resume the duties after proceeding on medical leave; thirdly, the said school as of today does not have full-fledged Head Master, and fourthly, merely because the respondent-Apparao Patil is holding the charge of Head Master cannot be a ground not to allow a full-fledged Head Master to continue on the said post. No prejudice whatsoever would cause to the respondent-trust having regard to their stand that they never terminated her services.

15. It is true that the respondent-Apparao Patil is holding the charge of Head Master. However, fact remains that the proposal sent to the Education Officer seeking approval to his appointment has not been accepted till this date. As against this, admittedly, the appellant was appointed as Head Mistress, her appointment was approved by the Education Officer and the respondent-Apparao Patil worked under her for 4/5 years without making any grievance. The respondent - Apparao Patil could have challenged an appointment of the appellant either in 2002 itself, when she was appointed as in-charge Head Mistress, or in 2004 when it was approved by the Education Officer, whereby he was superseded, by way of an appeal u/s 9(1)(b) of the MEPS Act within the stipulated time. Having failed to do so, in our opinion, it is not open to respondent-Apparao Patil to challenge the appellant's appointment in her appeal u/s 9 of the MEPS Act on the ground that her appointment was illegal. In these circumstances, we allow the appeals and direct the respondents to allow the appellant to take charge of the post of Head Mistress till disposal of the writ petitions, without prejudice to their rights and contentions therein and obviously subject to outcome of the writ petitions. Insofar as back wages and continuity of service is concerned, that part of the impugned order, passed by the Tribunal shall remain stayed pending the hearing and final disposal of the writ petitions. In view of the peculiar facts of this case, the learned Single Judge is requested to hear and dispose of both the writ petitions expeditiously.

Ordered accordingly.