Writ Petition No.891 of 2006

4th November, 2009

Petitioner Counsel: Shri. M. M. AGNIHOTRI
Respondent Counsel: Shri. A. J. KADU,Shri. O. D. KAKDE

Cases Cited:
Mrs. Teresa Lopes Vs. Carmelite Convent English High School, 1996(1) All MR 474=1996(2) Bom.C.R. 46 [Para 9]
Smt. Abeda Begam Abdul Gani Vs. Vishwa Vidya Vikas Shikshan Mandal, Solapur, 1996(2) ALL MR 147 [Para 9]
Managing Director, ECIL, Hyderabad Vs. B. Karunakar, 1993(4) SCC 727 [Para 9]
Ashok Asramji Gabhane Vs. Presiding Officer, School Tribunal, 2002(4) ALL MR 325=2003(2) Bom.C.R. 862 [Para 10]
Mahadeo Bhau Khilare (Mane) Vs. State of Maharashtra, 2007(6) ALL MR 476 (S.C.)=(2007)5 SCC 524 [Para 10]
Anil Dattatraya Ade Vs. Presiding Officer, School Tribunal, Amravati, 2003(2) ALL MR 818 (F.B.)=2003(4) Mh.L.J. 866 [Para 14]
Hindi Vidya Bhavan, Mumbai Vs. Presiding Officer, School Tribunal, Mumbai, 2007(6) Mh.L.J. 563 [Para 15]
Hindustan Education Society Vs. Sk. Kaleem Sk. Gulam Nabi, 1997(5) SCC 152 [Para 16]
Shikshan Prasarak Mandal, Wani Vs. Presiding Officer, School Tribunal, Amravati, 2005(4) Mh.L.J. 485 [Para 17]
President, Mahila Mandal, Sinnar Vs. Sunita Bansidhar Patole, 2007(2) Mh.L.J. 105 [Para 19]
Bharatiya Gramin Punarrachana Sanstha Vs. Vijay Kumar, 2003(1) Mh.L.J. 563 [Para 20]
Priyadarshini Education Trust Vs. Ratis (Rafia) Bano d/o. Abdul Rasheed, 2007(6) ALL MR 238=2007(6) Mh.L.J. 667 [Para 21]
Matoshri Ramabai Ambedkar Vidyarthi Vasatigruh Trust Vs. Bharat D. Hambir, 2009(2) Mh.L.J. 121 [Para 22]
Mathuradas Mohta College of Science, Nagpur Vs. R. T. Borkar, 1997(1) ALL MR 149=1997(2) Mh.L.J. 168 [Para 26]
Chinchni Tarapur Education Society's English Medium School, MIDC, Boisar Vs. Mrs. Surekha Shirish Dogmane, 2008(1) ALL MR 899 [Para 27]
Lakhwinder Kaur Gurai (Mrs.) Vs. Garison Children Education Society, 2006(5) ALL MR 149=2006(III) CLR 90 [Para 27]
Laxman Khanderao Ekhande Vs. State of Maharashtra, 2007(1) ALL MR 321=2007(1) Mh.L.J. 860 [Para 27]
St. Ulai High School Vs. Devendraprasad Jagannath Singh, 2007(2) ALL MR 1 (F.B.)=2007(1) Mh.L.J. 597 [Para 28]
Bharat Education Society's Junior College of Commerce and Economics Vs. Balaraman Vembulu, 2001(1) ALL MR 56=2000(4) Mh.L.J. 849 [Para 29]

JUDGMENT

JUDGMENT :- This petition by the Management is directed against the judgment of the School Tribunal, Amravati, whereby the Tribunal directed reinstatement of respondent No.1 with effect from 26-6-1991 with back wages.

2. Facts, which are material for deciding this petition, are as under :

Respondent No.1 was M.Com., B.P.Ed. when he was first appointed in a Junior College on 2-8-1985 on a fixed salary of Rs.250/- per month for a period up to 30-6-1986. His appointment was approved by the Deputy Director of Education for the subjects of Commerce and Physical Education on a pay scale of Rs.250-450/- for the Academic Session 1985-86. This appointment was continued by another order dated 28-6-1986 on a fixed pay of Rs.500/- for the Academic Session from 1-7-1986 to 8-5-1987. This too was approved by the Deputy Director of Education for the Academic Session 1986-87. There is a dispute about the next appointment order dated 9-7-1987. According to the petitioners, respondent No.1 was appointed by order dated 9-7-1987 on a clock-hour basis for the period from 9-7-1987 to 24-3-1988. By order dated 17-10-1988, the Deputy Director of Education approved this appointment on a clockhour basis at the rate of Rs.12/- per hour with effect from 9-7-1987 till the end of the Academic Session 1987-88. However, according to respondent No.1, this order was fabricated and in fact he was appointed from 9-7-1987 to 8-7-1987 in a clear vacancy. Respondent No.1 relies on a undated order signed by the President of the Society, which does not mention any pay scale, whereas the petitioners rely on an order signed by the Principal of the College.

3. Before respondent No.1 came to be appointed, there was another untrained Teacher Shri. G. S. Khule, who had been appointed for teaching Commerce, Co-operation and Physical Education. According to the petitioners, respondent No.1 is a protege of the then President of the Society, who terminated the services of said Shri. Khule with effect from 24-3-1988. Shri. Khule challenged his termination before the School Tribunal by filing Appeal No.144 of 1988. The Management took a stand in the said appeal that as per the order of the Deputy Director of Education to promote one Shri. Yawale, the services of said Shri. Khule were terminated. The School Tribunal had granted stay to the termination of Shri. Khule, which the then President of the Society one Shri. Kalmegh ignored.

4. By order dated 16-12-1988 (16-8-1988 ?), respondent No.1 was appointed by the President of the Society for a period of two years from 18-8-1988 on a purely temporary basis, stipulating that his services shall stand terminated without any reason. This appointment was not approved by the Deputy Director of Education by his letter dated 22-11-1988, as there was not sufficient workload. Again by letter dated 15-9-1989, the Deputy Director of Education disapproved the appointment of respondent No.1 observing that in spite of the stay order of the School Tribunal in Khule's proceedings, respondent No.1 was granted continuity in derogation of the rules. Similar order was issued by the Deputy Director of Education on 26-9-1990.

5. In the meantime, there were elections to the Management of the Society on 16-6-1991 and a new Management took over. This Management terminated the services of respondent No.1 with effect from 26-6-1991. Respondent No.1 also claimed to have passed B.Ed. (Revised Course) from Marathwada University in March, 1988.

6. Respondent No.1 had sought to intervene in the appeal filed by Shri. Khule. Though his prayer for intervention was allowed, eventually while allowing the appeal of Shri. Khule on 28-1-1993, the School Tribunal did not grant any relief to respondent No.1 and observed that he was not entitled to any such relief. Respondent No.1 challenged the order of the School Tribunal by filing Writ Petition No.893 of 1993. The said Writ Petition was disposed by judgment dated 23-2-2005, whereby respondent No.1 was permitted to file a separate and independent appeal under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act before the School Tribunal (for short, "the MEPS Act"). Accordingly, respondent No.1 preferred an appeal before the Tribunal bearing Appeal No.11 of 2005, which was allowed by the Tribunal by its impugned order. Aggrieved thereby, the petitioner-Management is before this Court.

7. I have heard the learned counsel for the petitioners and respondent No.1-Teacher as well as the learned AGP for respondent No.2-the Deputy Director of Education, at sufficient length.

8. The learned counsel for the petitioners submitted that respondent No.1 did not have any right to the post on the basis of his appointments, which were not as per the provisions of the MEPS Act. He pointed out that respondent No.1 was appointed by the then President of the Society without the approval of the School Committee. Respondent No.1 has himself filed at Annexure R-V his application dated 10-8-1988 and the order of the President. The application contains an endorsement of one Shri. S. S. Kalmegh, who was the then President, showing that the application was scrutinized and respondent No.1 was called for interview. This is followed up by Shri. Kalmegh's further endorsement that respondent No.1 was appointed as a full-time Junior Lecturer for teaching Commerce subjects. This application and the order and the speed with which the application was processed itself would create a doubt about the appointment of respondent No.1. In any case, this appointment was not approved by the Deputy Director of Education. Even this appointment order does not show that respondent No.1 was appointed on probation for a period of two years. He was appointed on a purely temporary basis - though in a clear vacancy for two years. It is not necessary for the purpose of deciding this petition to go into the question of earlier appointment of respondent No.1, as also the question of effect of order in Shri. Khule's appeal on respondent No.1's fortunes. It is also not necessary to go into the question whether respondent No.1's appeal could have been entertained without any formal application for condonation of delay, since he had been permitted by this Court to file an appeal within a month of the order passed by this Court, which he had done.

9. Thus the only question that is required to be decided is whether respondent No.1 was appointed with effect from 18-8-1988 for a period of two years on probation, and if so, does his service get regularized after completion of two years from 18-8-1988. It is also likewise not necessary to go into the question of acquisition of B.Ed. qualification by respondent No.1, though the learned counsel for the petitioners may be right in submitting that there is something suspicious about respondent No.1's clearing B.Ed. qualification from Marathwada University. There is nothing on record to show that respondent No.1 was deputed by the College for clearing such qualification, and though there is nothing to show that respondent No.1 had taken any leave for completing his B.Ed. degree course, it is not shown that this B.Ed. course was a vacation or summer course. Reliance by respondent No.1 on a judgment of Aurangabad Bench in Writ Petition No.1363 of 1986 and other connected petitions (Suresh Shivrajappa Hatte Vs. The State of Maharashtra and others) about this special B.Ed. Course, is misplaced, since respondent No.1 was not shown to be a party to any of the petitions disposed of by the said judgment. The claim of the learned counsel for respondent No.1 that respondent No.1 was a student of Jai Kranti Shikshan Prasarak Mandal's College, Latur, which was the respondent in Writ Petition No.48 of 1987 is equally unhelpful and would create a further doubt as to why respondent No.1 was required to go to Latur for completing his B.Ed. course and how he could complete it without absenting himself from the College. It is not necessary to go into the said question and the petition may be decided on the assumption that respondent No.1 did complete his B.Ed. course from Marathwada University rightly or wrongly. It is, therefore, not necessary to deal with the judgments of this Court in Mrs. Teresa Lopes Vs. Carmelite Convent English High School and others, reported at 1996(2) Bom.C.R. 46 : [1996(1) ALL MR 474] and Smt. Abeda Begam Abdul Gani Vs. Vishwa Vidya Vikas Shikshan Mandal, Solapur, reported at 1996(2) ALL MR 147 (Maharashtra Education Cases 542), since it is not the case of the Management that respondent No.1 was to be dismissed for making any false entries relating to his B.Ed. qualification. It is likewise not necessary to refer to the judgment of the Supreme Court in Managing Director, ECIL, Hyderabad Vs. B. Karunakar, reported at 1993(4) SCC 727, which relates to dismissal after an enquiry.

10. The learned counsel for the petitioners relied on a judgment of this Court in Ashok Asramji Gabhane Vs. Presiding Officer, School Tribunal and others, reported at 2003(2) Bom.C.R. 862 : [2002(4) ALL MR 325], to support his contention that if an appointment was issued by a person who was not the Head Master or the Secretary of the Management, such appointment was not valid and the same could be terminated without following the rules applicable to permanent appointment. The appointment of respondent No.1 on 16-8-1988/16-12-1988 was made by the President of the Society and not by the Principal or the Secretary of the School Committee. The manner in which this order was issued was discussed in earlier part of this judgment. The learned counsel for the petitioners submitted that this appointment was not valid and, therefore, respondent No.1's termination could not be questioned. The learned counsel for the petitioners also relied on a judgment of the Supreme Court in Mahadeo Bhau Khilare (Mane) and others Vs. State of Maharashtra and others, reported in (2007)5 SCC 524 : [2007(6) ALL MR 476 (S.C.)], where certain persons were engaged by the Talathi as unpaid candidates to assist him. The Supreme Court held that such appointments were wholly illegal and unconstitutional and did not create any right in such persons.

11. Considering the manner in which respondent No.1's application was processed by the President, who interviewed him and issued appointment order post haste, it has to be held that the appointment itself is invalid. This is so first, as there is nothing to show that respondent No.1 was considered along with other applicants and then selected by the School Committee and secondly, as the order is not only not issued by the Head Master or the Secretary but is not shown to have the approval of the School Committee.

12. The learned counsel for the petitioners next submitted that in any case the course itself for which respondent No.1 was appointed has been closed from the Academic Session 1993-94. Therefore, there was no question of reinstatement of respondent No.1. The learned counsel for respondent No.1 submitted that in case of closure of course, if retrenchment has to take place, procedure under Rule 26 of the MEPS Rules would have to be followed. Since the question raised in this petition is about termination effected on 26-6-1991, it is not necessary to consider the development in the year 1993-94. If the petitioners are able to prove that discontinuation of respondent No.1 on 26-6-1991 was valid, there would be no question of retrenchment of respondent No.1 on account of closure of course in the year 1993-94 and consequently, no question of resorting to the provisions of Rule 26 of the MEPS Rules would arise.

13. Though the appointment of respondent No.1 was itself thus invalid, it may be useful to consider the nature of appointment and its consequences had it been valid. The learned counsel for respondent No.1 submitted that the appointment has to be taken as one on probation and for this purpose, relied on a number of judgments.

14. Reliance by the learned counsel for respondent on a judgment of this Court in Anil Dattatraya Ade Vs. Presiding Officer, School Tribunal, Amravati and others, reported at 2003(4) Mh.L.J. 866 : [2003(2) ALL MR 818 (F.B.)], is misplaced, since in that case, the order of appointment mentioned that the appointment was temporary for the academic year 1981-82 and that the teacher would have to serve the Institution at least for two years and that the same period will be treated as probation period. This was further followed up by another order for the next academic year informing the teacher that his services were continued for the next academic year and that his probation period of two years was from the date of joining. Such are not the facts of the present case.

15. In Hindi Vidya Bhavan, Mumbai and others Vs. Presiding Officer, School Tribunal, Mumbai and others, reported at 2007(6) Mh.L.J. 563, on which the learned counsel for respondent No.1 relied, a learned Single Judge held that the Management could not take advantage of its own wrong to contend that no procedure was followed in appointing staff to justify termination of such members. It was also held that want of approval by the Education Department would not matter if the employee concerned is otherwise qualified and holds the post for more than two years. The learned counsel for the petitioners pointed out that in this case, the then President of the Society had high-handedly appointed respondent No.1 by processing his application on the same day, clearing him for interview, and then also selecting him. He submitted that the Management could not be burdened with such a teacher and, therefore, the judgment in Hindi Vidya Bhavan, Mumbai and others Vs. Presiding Officer, School Tribunal, Mumbai and others would be of no help.

16. In Hindustan Education Society Vs. Sk. Kaleem Sk. Gulam Nabi, reported at 1997(5) SCC 152, on which the learned counsel for the petitioners relied, the Supreme Court had considered the appointment made in the following terms :

"YOUR appointment is purely temporary for a period of 11 months from 11/6/1992 to 10/5/1993 in the clear vacancy. After expiry of the above period your service shall stand terminated without any notice."

Similar are the words in the appointment letter on which respondent No.1 places reliance. After considering the scheme of Section 5 of the MEPS Act, the Supreme Court held that since the appointment was purely temporary and for a limited period, the approval was also given for a temporary appointment. The Court held that only the permanent appointments are regulated by Section 5 of the MEPS Act. The Court also held that the appointment of a Teacher therein could not be considered as permanent appointment and, therefore, set aside the directions of the High Court, allowed the appeal and dismissed the petition of the Teacher before the High Court.

17. The learned counsel for respondent No.1 relied on a judgment of a learned Single Judge of this Court in Shikshan Prasarak Mandal, Wani Vs. Presiding Officer, School Tribunal, Amravati and another, reported 2005(4) Mh.L.J. 485. In that case, the order of appointment was for one academic session on a purely temporary basis, which was followed up by another appointment order for the next academic session again on a purely temporary basis, whereafter the teacher was not allowed to continue. The learned Single Judge considered the effect of judgment in Hindustan Education Society Vs. Sk. Kaleem Sk. Gulam Nabi and observed in paras 9 and 10 as under :

"9. The next ruling on which reliance is placed by the advocate for the petitioner is reported at (1997)5 SCC 152. Here again, the Hon'ble Apex Court has considered the order of appointment which was purely temporary for a period of 11 months from 11-6-1992 to 10-5-1993 in clear vacancy and it further stated that after expiry of the above period, services of appointee shall stand terminated without any notice. It is in this background that the Hon'ble Apex Court has found that the appointment was of purely temporary nature and the approval given by the Competent Authority was also for that temporary appointment. It found that the procedure prescribed for permanent appointment as contemplated by section 5(1) and (2) has not been followed. It is in this background that the Hon'ble Apex Court has considered the issue and answered it. Thus, the facts considered by the Hon'ble Apex Court are entirely different and therefore said ruling has no application to this case. Here, the management has not pointed out the procedure followed while appointing respondent No.2 in service and does not state that the procedure as contemplated by sub-sections (1) and (2) of section 5 have not been followed."

"10. In the case before the Hon'ble Apex Court as also in the case before this Court, the appointment was of temporary nature and the appointment was obvious from the order of appointment itself. In the case before the Hon'ble Apex Court, it was expressly mentioned that though vacancy was clear, the appointment was only for 11 months and that period of 11 months has also been specified with further warning that after expiry of 11 months, the services of appointee shall stand terminated without any notice. The appointment order in the judgment 1997(3) Mh.L.J. 195 before this Court was also identical. When in this background, the appointment order issued to respondent No.2 is seen, it will be apparent that in the said appointment order, it is only specified that the appointment is purely temporary for particular sessions without mentioning the nature of vacancy and there is no mention that at the end of that session, services of respondent No.2 shall come to can end without any notice. The School Tribunal has noticed that the said appointment has continued for the next session also and therefore, it has drawn the inference as mentioned above."

18. It may be seen that the learned Single Judge had distinguished the judgment of the Supreme Court in Hindustan Education Society Vs. Sk. Kaleem Sk. Gulam Nabi, because the appointment order in the case, which was being considered by this Court, did not stipulate that the services of the teacher shall come to an end at the end of the term mentioned in the order without any notice. This has to be contrasted with the case at hand where the appointment order dated 16-8-1988 clearly mentions that after the period mentioned in the order, the services of respondent No.1 would stand terminated without any reason.

19. The learned counsel for respondent No.1 relied on a judgment of a learned Single Judge of this Court in President, Mahila Mandal, Sinnar and another Vs. Sunita Bansidhar Patole, reported at 2007(2) Mh.L.J. 105. In that case, after considering the provisions of Section 5 of the MEPS Act, the Court observed in paras 14 to 19 as under :

"14. Once it is clear that the post wherein the respondent was appointed was a permanent vacancy, unless it is specifically disclosed by the Roster that the same was meant to be filled in by appointment of a reserved category candidate, the provisions of section 5(1) of the M.E.P.S. Act are clearly attracted. In the case in hand, it is not in dispute that the post which was occupied by the respondent was a permanent vacancy. The contention that it was for reserved category candidate is already found to be devoid of substance. Obviously, when the respondent was duly selected and appointed by issuing appropriate order of appointment on 1st July, 1988, the same was to be considered as in terms of the provisions of law comprised under section 5(1) and the candidate so appointed completes period of two years of service, the provisions of section 5(2) are naturally attracted."

"15. It was, however, sought to be contended that provisions of section 5(2) would be attracted only in case where the person is appointed on probation. Every appointment made under section 5(1) is deemed to be on probation till the person appointed completes period of two years and that is the intent behind sub-section (2) of section 5 of the said Act. It is pertinent to note that phraseology of sub-section (2) clearly discloses that every person appointed to fill permanent vacancy "shall be on probation" for a period of two years and it further provides that subject to the provisions of sub-sections (3) and (4) of section 5 "he shall on completion of this probation period of two years be deemed to have been confirmed"."

"16. Evidently, it provides for the deemed confirmation on completion of period of two years without any requirement of specific confirmation order by the management in that regard. Being so, in the case in hand, once the respondent had completed a period of two years from the date of appointment under letter dated 1st July, 1988 she ought to have been deemed to have been confirmed and for the same reason her service could not have been terminated without following the procedure prescribed by law for termination of service of a permanent employee, which obviously includes issuance of notice, charge-sheet, enquiry etc. before passing an order of termination of services. The management admittedly has not done any such things."

"17. The attention, however, on behalf of the petitioners was sought to be drawn to the orders of appointment issued every year and, therefore, it is contended that no benefit under section 5(1) and (2) can be given to the respondent. The contention is devoid of substance. Merely because the management chooses to issue appointment orders every year, the appointment of the respondent ipso facto cannot become a temporary one. The Management is bound by the provisions of law comprised under M.E.P.S. Act in relation to the appointments of teachers. Once it is not in dispute that vacancy which was filled by the appointment of the respondent was a permanent vacancy, as such appointment was after following the procedure prescribed for appointing a person in permanent vacancy irrespective of the appointment letters being issued every year, the appointment of the respondent has to be construed as under section 5(1) of the said Act. Being so, the so called appointment letters issued after 1st July, 1988 are to be considered redundant and without any legal consequence. As already observed, it is also to be noted that the order of 1st July, 1988 nowhere discloses appointment was on temporary basis or for the period of one year."

"18. The decision of the Apex Court in Bhartiya Gramin Punarrachana Vs. Vijay Kumar's case (supra) is of no help to the petitioners wherein the Apex Court while considering the scope of section 5(2) had held that :-

"A plain reading of section 5(2) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act would show that it applies to a person who is put on probation consequent upon his appointment in a permanent vacancy."

"19. Referring to the above quoted observation, it was sought to be contended that the appointment has to be on probation and only thereupon the provisions of sub-section (2) of section 5 would be attracted. As already observed, there is nothing called "appointment on probation". Once the appointment is made in terms of section 5(1) it takes colour of appointment on probation, by virtue of the provisions comprised under sub-section (2) and that is what has been held by the Apex Court in the above decision."

20. First, it may have to be mentioned that the judgment in Hindustan Education Society Vs. Sk. Kaleem Sk. Gulam Nabi was not cited before the Court. It may also be useful to refer to judgment of the Supreme Court in Bharatiya Gramin Punarrachana Sanstha Vs. Vijay Kumar and others, reported at 2003(1) Mh.L.J. 563. In that case, the employee concerned had applied in response to an advertisement and was selected and appointed by the Management on 22-6-1996 for a period of two years from 24-6-1996 to 23-6-1998. The Deputy Director of Education approved the appointment for academic year 1996-97 only. Since no approval for academic year 1997-98 was forthcoming, the services of the employee were terminated on 17-9-1997. Upon challenge by the employee, the School Tribunal directed reinstatement of the employee with 75% back wages, which order was maintained by the High Court. In that case, the employee was appointed against a vacancy meant for Scheduled Tribe candidate, though he did not belong to Scheduled Tribe. However, the order of the High Court was not criticized on this ground. The Management had contended before the Supreme Court that the appointment was for a fixed period of two years. It was argued before the Supreme Court on behalf of the employee that after the period of two years, the employee would be deemed to have been confirmed in view of the provisions of sub-section (2) of Section 5 of the M.E.P.S. Act. Even after having noticed these provisions, the Supreme Court did not hold that the appointment ought to have been made on probation for a period of two years or that on completion of such period, the employee was entitled to confirmation. On the other hand, the Supreme Court allowed the appeal by confining the entitlement of the employee to the period till 23-6-1998 only.

21. It may also be useful to refer to a judgment of Division Bench in Priyadarshini Education Trust and others Vs. Ratis (Rafia) Bano d/o. Abdul Rasheed and others, reported at 2007(6) Mh.L.J. 667 : [2007(6) ALL MR 238]. In that case, the concerned Teacher was appointed on 15-6-1981 for one academic year on a temporary basis. This appointment was continued from time to time up to 17-2-1990. She was again appointed in 1992-93 and 1993-94. She claimed to have been appointed in 1992 on probation for a period of two years. In 2004, an advertisement was issued and after selection, other Teachers were appointed to various posts. The respondent Teacher had not applied in response to the advertisement and, therefore, there was no question of her being appointed. She approached the School Tribunal claiming that she had been orally terminated on 13-6-1994. The Tribunal dismissed her appeal, which dismissal was challenged by preferring writ petition before the High Court, which was allowed by a learned Single Judge. The decision of a learned Single Judge was challenged by the Management by preferring the Letters Patent Appeal. In para 7 of the judgment, the Division Bench referred to the judgment of the Supreme Court in Hindustan Education Society. In para 10, the Court noted the provisions of sub-sections (1) and (2) of Section 5 of the M.E.P.S. Act. The observations in para 11 of the judgment in this regard may be usefully reproduced as under :

"11. ... In this context, we may also refer to the text of sub-section (2) of section 5, which is already re-produced hereinabove. From the opening part "every person appointed to till in permanent vacancy shall be on probation for a period of two years....", it is evident that once a person is selected in the manner prescribed and duly appointed, the Management or the School Committee has no option. Such a person must be appointed on probation. If there is a permanent vacancy and if a person duly qualified is selected in the manner prescribed and then duly appointed, the Management has no choice or option to appoint him for a limited period such as one academic year or shorter than that. ..."

In para 12 of the judgment, after considering several judgments, the Division Bench drew the following conclusions :

"We draw following conclusions;

(i) "duly appointed, in the manner prescribed" would be an appointment of a person who is eligible (qualified for the post) for appointment, who is selected by due process of selection i.e. by competition amongst all eligible and desirous candidates, and who is appointed on a permanent vacant post. In other words, inviting applications, as also holding of screening tests, enabling all eligible and desirous candidates to compete for selection and appointment, is a must.

(ii) Once an eligible candidate (duly qualified as required) is selected by selection process as above, for filling in a permanent vacancy, there is no option for the management and it is obligatory on it to appoint such person on probation for a period of two years. It is neither open for the management to appoint him for one academic year or any period shorter than two years probation period, nor it is open for Education Officer to grant approval for such shorter period. (in fact, in view of requirement as in clause (i) above, the process of grant of approval by Education Officer should begin with examination of selection process and its validity.

(iii) The candidate thus selected with due process and appointed on probation shall enjoy status of deemed permanency on completion of two years, unless extension of probation is informed, or termination is ordered.

(iv) The appointment of a person not belonging to reserved category, in a post reserved for a particular category, because the candidate of that category is not available, shall be absolutely temporary and on an year to year basis, governed by sub-rule (9) of Rule 9, although in a permanent vacancy."

The Court then allowed the Letters Patent Appeal, set aside the judgment of the learned Single Judge and dismissed the writ petition.

22. In Matoshri Ramabai Ambedkar Vidyarthi Vasatigruh Trust and another Vs. Bharat D. Hambir and another, reported at 2009(2) Mh.L.J. 121, this Court has specifically considered the provisions of Section 5 of the M.E.P.S. Act. It was observed in para 5 of the judgment as under :

"The School Tribunal has noted that in the present case, the first respondent was appointed after an advertisement was issued on 19th April, 2004 and interviews were held on 7th June, 2004. The first respondent was appointed with effect from 14th June, 2004 as an Assistant Teacher. The first respondent is a duly qualified teacher holding the B.A. And B.Ed. Qualifications. The appointment of the first respondent was approved by the Social Welfare Officer on a probationary basis. In fact, it was the contention of the petitioners that the work of the first respondent during the period of probation was not satisfactory. This aspect would be dealt with later. However, it is evident that even the petitioners accepted and treated the appointment of the first respondent as being on probation. The law in this regard is clear. Section 5 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 obligates every management of a private school to fill up a permanent vacancy by appointment of a duly qualified candidate to fill such vacancy and under sub-section (2) of section 5, every person appointed to fill a permanent vacancy shall be on probation for a period of two years. Upon the satisfactory completion of the period of probation, there is a deeming fiction under the statute by which an employee is deemed to have been confirmed. A permanent vacancy has to be filled in by the appointment of a duly qualified candidate and every candidate appointed to fill a permanent vacancy has to be appointed on probation."

23. The learned counsel for the respondents, therefore, submitted that since the law obligates every Management to fill up a permanent vacancy, every such person appointed to fill up such permanent vacancy shall be on probation for a period of two years. However, it has to be noted that in that case as a fact it was accepted by the Management that the appointment of the employee was on probation. Therefore, it cannot be said that the observations about obligation on the Management is a result of adjudication.

24. I have considered these erudite judicial pronouncements. I have serious doubts if the findings of the Apex Court, in not one, but two judgments, after noting the provisions of Section 5 of the MEPS Act, could be ignored and it could still be held that an appointment in a clear vacancy must be on probation. The order of appointment, which was under consideration of the Apex Court in Hindustan Education Society and another Vs. Sk. Kaleem Sk. Gulam Nabi and others has already been quoted in preceding paras. Teacher, whose appointment was questioned in Bharatiya Gramin Punarrachana Sanstha Vs. Vijay Kumar and others, was selected and appointed after following procedure for two years in a clear vacancy. Yet, the Supreme Court in these two cases did not hold that the appointments must be held to have been made on probation. It may be audacious for me to ignore this and yet follow contrary findings, which could be reconciled only by distinguishing between a clear vacancy and a permanent vacancy. Every clear vacancy need not be mistaken for a permanent vacancy. When a new School starts, teachers will have to be appointed even before students are enrolled. Such appointments would obviously be in clear but temporary vacancies, since no one would be able to predict if the School would succeed or fail.

25. In fact, in the case at hand, the School had to close down the faculty for which respondent No.1 was recruited. It is easy to say that in such a case procedure for retrenchment of Rule 26 of the MEPS Rules should be followed. First, the Courts hold that the appointments on clear vacancies must be on probation. Then we hold that on completion of probation, the teacher must be confirmed, i.e. made permanent. We also hold that the approval of the Education Officer is irrelevant-thus there could neither be scrutiny of workload nor of sanctioned strength and then the burden of adjusting such a teacher would, however, lie on the Education Department, by curtailing chances of employment for unemployed prospective teachers in other Schools. Just as teachers have to be protected from machinations of unscrupulous management, Society has to be protected from such machinations, which have the potential of burdening the Society with liability to adjust a teacher in the position of respondent No.1, who was foisted on the School by the erstwhile President of the petitioner-Institution.

26. In Mathuradas Mohta College of Science, Nagpur Vs. R. T. Borkar and others, reported at 1997(2) Mh.L.J. 168 : [1997(1) ALL MR 149], on which the learned counsel for the petitioners relied, a Division Bench of this Court was considering the case of a teacher, who had been appointed in middle of academic session and whose services were terminated at the end of academic session. The post was advertised for the next session and the teacher concerned was not selected. He then challenged his earlier termination. The Court considered the arguments that the appointment of the teacher should have been on probation for a period of two years, as provided under Section 5 of the MEPS Act. In para 6 of the judgment, the Division Bench observed as under :

"6. Application of section 5 of the MEPS Act made by the Tribunal to the order in question at Annexure-A was improper. It is to be noticed that even section 5 of the Act does not require that the Management shall make appointment of probationer. Sub-section (1) of section 5 lays down that the management shall, as soon as possible, fill in the manner prescribed every permanent vacancy in a private school by the appointment of a person duly qualified to fill such vacancy. Sub-section (2) lays down that every person appointed to fill a permanent vacancy shall be on probation for a period of two years and subject to the provisions of sub-sections (4) and (5) he shall, on completion of this probation period of two years, be deemed to have been confirmed. Sub-section (5) of section 5 provides that the Management may fill 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. Rule 10 of the Rules of 1981 framed under the MEPS Act provides categories of the employees. According to this rule, employees shall be permanent or non-permanent. Non-permanent employees may be either temporary or on probation. Temporary employee is one who is appointed in temporary vacancy for a fixed period. Reading Section 5 along with Rule 10, it is clear that as soon as possible, the Management shall fill in the permanent post by appointing a person duly qualified to fill such vacancy. It will be further clear that the non-permanent employees may be temporary or on probation and the temporary appointment is for the temporary vacancy. Thus understood, the vacancy with the petitioner when the respondent No.1 was appointed, was non-permanent temporary vacancy without availability of the work load required to be assigned to the teacher and, therefore, his appointment on clock-hour basis was made. Even though the said appointment was approved by the Deputy Director of Education, the said approval was for a period from 1st October, 1981 to the end of the academic session and, therefore, the Tribunal was in error in holding that the appointment of the respondent No.1 was in a clear vacancy and, therefore, should have been an appointment on probation for two years as provided under section 5 of the MEPS Act."

(Emphasis supplied)

The learned counsel for the petitioners submitted that there is a striking parallel to the facts of case at hand and here too, there was no work-load, as observed by the Deputy Director of Education and, therefore, the appointment was made on a temporary basis.

27. The learned counsel for respondent No.1 also referred to the judgment of a learned Single Judge in Chinchni Tarapur Education Society's English Medium School, MIDC, Boisar and others Vs. Mrs. Surekha Shirish Dogmane and others, reported at 2008(1) ALL MR 899. However, the case pertained to the issue of seniority and supersession and, therefore, the observations therein may not be germane for deciding the present case. Same holds good about the judgments in Lakhwinder Kaur Gurai (Mrs.) Vs. Garison Children Education Society and others, reported at 2006(III) CLR 90 : [2006(5) ALL MR 149] and Laxman Khanderao Ekhande Vs. State of Maharashtra and others, reported at 2007(1) Mh.L.J. 860 : [2007(1) ALL MR 321].

28. The learned counsel for respondent No.1 submitted that there can be no doubt about irrelevance of approval or disapproval of the appointment by the authorities in the Education Department in view of the judgment of the Full Bench of this Court in St. Ulai High School and another Vs. Devendraprasad Jagannath Singh and another, reported at 2007(1) Mh.L.J. 597 : [2007(2) ALL MR 1 (F.B.)]. As held by the Full Bench, grant of approval is not a condition precedent for a valid order of appointment. All the same, it has to be shown that the order of appointment was otherwise not in terms of the MEPS Act and Rules. In this case, the order of appointment does not show that it was made by the School Committee.

29. The question as to whether respondent No.1 could be retrenched by following procedure contemplated in Rule 26 of the MEPS Rules would arise only if it is shown that respondent No.1 was in the regular employment of the petitioners. Hence reference to judgment in Bharat Education Society's Junior College of Commerce and Economics and others Vs. Balaraman Vembulu, reported at 2000(4) Mh.L.J. 849 : [2001(1) ALL MR 56], is not warranted.

30. It may be seen from the foregoing that the appointment of respondent No.1 was made by the President of the Society in a slipshod manner when the Society was in fact obliged to reinstate one Shri. Khule in terms of the order of the Tribunal. Therefore, it would be reasonable to hold that on the date respondent No.1 was appointed by the President, there was no clear vacancy against which respondent No.1 could have been absorbed. While there can be no doubt that the question of approval may not be exactly relevant in view of the judicial pronouncements referred to above, the reason as to why the approval was refused, namely want of workload, would imply that in the absence of a clear vacancy, respondent No.1 could not have been appointed. Consequently, there would be no warrant to fictionally hold that respondent No.1 was entitled to appointment on probation on 16-8-1988. There is an additional reason for holding that the appointment itself was invalid, since it was made by the President of the Society and not by either the Principal or the Head Master or the School Committee. In view of this, it has to be held that the School Tribunal erred in holding that the termination of respondent No.1 was invalid and ordering his reinstatement.

31. The flaws in respondent No.1's case are far too many. First, the appointment dated 9-7-1987 is itself on clock hour basis. It is not shown as to how after 24-3-1988 a regular vacancy came into existence and the same was required to be filled up. Secondly, the claim of respondent No.1 to have completed B.Ed. course from an Institution in Latur, without there being any document to show that he had been sponsored by the Management, would cast a doubt on his being qualified to hold the post of a Commerce Teacher. The contention of the learned counsel for respondent No.1 that the appointment of respondent No.1 was justified even as a Physical Education Teacher may not be acceptable, since he was not so appointed as Physical Education Teacher. The summary method, by which the then President of the Society processed the application of respondent No.1, also leaves a lot to be desired. Last but not the least, even if the appointment order dated 16-8-1988 is relied upon, it unequivocally states that the appointment would come to an end on the expiry of the period mentioned without assigning any reason, squarely attracting the observations of the Supreme Court in Hindustan Education Society and another Vs. Sk. Kaleem Sk. Gulam Nabi and others. In view of this, in the absence of any material to show that there was a permanent vacancy, which could have been filled up by appointing respondent No.1 and in the absence of any material to show that respondent No.1 was qualified for being appointed in a permanent vacancy, the order of appointment dated 16-8-1988 would not clothe respondent No.1 with any right to continue in such appointment. The impugned order of the School Tribunal is, therefore, liable to be quashed and set aside.

32. The petition is, therefore, allowed. The impugned order of the School Tribunal is quashed and set aside, and respondent No.1's appeal before the Tribunal is dismissed.

Petition allowed.