Writ Petition No.3428 of 2004

21st April, 2014

Petitioner Counsel: Shri B.H. SHAMBHARKAR
Respondent Counsel: Dr. ANJAN DE, Ms P.D. RANE

Cases Cited:
Ramkrushna Chauhan Vs. Seth D.H. High School and others, 2013(3) ALL MR 1=2013(2) Mh.L.J. 713 [Para 17,24]
Shikshan Prasarak Mandal, Akola and others Vs. Laxmikant Balkrishna Joshi and others, 2004(1) ALL MR 719 (F.B.)=2004(1) Mh.L.J. 619 [Para 18,25]
Matoshri Ramabai Ambedkar Vidyarthi Vasatigruh Trust and another Vs. Bharat D. Hambir and another, 2009 (2) Mh.L.J. 121 [Para 19,21]
Shakuntala G. Shirbhate Vs. Industrial Weaving Cooperative Soc., AIR 1994 SC 36 [Para 22]
Shamin Azad Education Society, Giroli, Tq. Manora, Distt. Akola, through its President and others Vs. The Presiding Officer, School Tribunal, Amravati, and others, W.P. No.2084/2013, Dt.3/3/2014 [Para 24]

JUDGMENT

JUDGMENT :- This petition takes exception to the judgment and order dated 18-4-2001 passed by the School Tribunal, Nagpur, dismissing Appeal No.STN/243 of 1993 filed under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 ("MEPS Act") challenging the termination of the petitioner from service by an order dated 3-4-1993 with effect from 4-5-1993.

2. The facts of the case are as under :

In response to the advertisement dated 17-7-1992 issued by the respondentManagement of the School, the petitioner applied for the post of an Assistant Teacher to teach the Middle School Classes. The petitioner was possessing the requisite qualifications of S.S.C., D.Ed. in terms of the said advertisement and was, upon her selection, appointed as an Assistant Teacher on temporary basis for a period of one session with effect from 19-11-1992. This appointment was approved by the Education Officer (Secondary), Zilla Parishad, Nagpur, by his order dated 3-6-1993 for the session 1992-93 with effect from 19-11-1992. By notice dated 3-4-1993, issued under Rule 28(1) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1971 ("MEPS Rules"), the services of the petitioner were terminated with effect from 4-5-1993. This was the subjectmatter of challenge before the School Tribunal in Appeal No.STN/243 of 1993 by the petitioner under Section 9 of the MEPS Act.

3. The specific case with which the petitioner approached the School Tribunal is that the School in which she was appointed, was being run on grantinaid basis and it is recognized by the State Government. The petitioner was appointed as an Assistant Teacher by an order dated 19-11-1992 in the scale of Rs.1,2002,040/- in a post, which was reserved for the Scheduled Caste candidate. The petitioner was possessing the qualifications of S.S.C., D.Ed. and was, therefore, appointed to occupy the clear and permanent vacancy. The petitioner belongs to Scheduled Caste (Mahar) category and hence it was obligatory on the part of the Management to appoint her on probation for a period of two years instead of appointing her on temporary basis for a period of one academic session, as has been specified in the order of appointment. The respondentManagement could not have terminated the services of the petitioner except by invoking its power to terminate the services of a probationer on the ground of unsatisfactory work. There was no material available with the respondentManagement to terminate the services of the petitioner on the ground of unsatisfactory work, as no adverse remark was communicated to him during the period of her service.

4. The petitioner further alleged in his memo of appeal that during the Academic Session 1992-93, total seven teachers were working in the School, whose names are stated in the memo of appeal and the details of the classes where they were teaching are also given. It is further averred in the appeal that pursuant to an advertisement dated 17-7-1992, four persons were appointed as Teachers as under :

Sr.No.	Name	Qualification	Designation	Remark
1.	Ku. S.L.Nandeshwar Appointed 19-11-92.	S.S.C. D.Ed.	Asst. Teacher on middle School.	Schedule Caste (Mahar)
2.	Ku. V.R. Harode Appointment 17-8-92	S.S.C. B.Ed.	"	Dhangar other
3.	Shri B.R. Bhilawe Appointment 24-8-92	B.Sc. B.P.Ed.	High School
4.	P.K. Borikar Appointment 8-12-92	S.S.C. Sangit Visharad	Assistant Teacher

It is alleged that out of the aforesaid four Teachers, only the petitioner was terminated and other three Teachers were continued for Academic Session 1993-94, and this was the mala fide action on the part of the Management.

5. The petitioner amended the memo of appeal and brought on record certain additional facts. The Management advertised the post occupied by the petitioner in the local newspaper on 25-8-1993. The petitioner sent her application dated 26-8-1993 by registered post acknowledgment due and personally attended the interview at 8.30 a.m. on 28-8-1993 and submitted her application personally, which was received by the Management, but she was not given the acknowledgment. The petitioner was not interviewed and the petitioner, therefore, reported the matter to the Education Officer on 1-9-1993. The respondentManagement received the application sent by the petitioner by registered post acknowledgment due on 1-9-1993, but no reply was given.

6. The Management filed its reply to the memo of appeal and denied that the petitioner was appointed in a clear and permanent vacancy, or that her appointment could be treated as one on probation. The stand taken was that the petitioner was appointed to teach the subjects of Marathi and Social Science and her appointment was purely on temporary basis for a fixed period of one session from 19-11-1992. The appointment of the petitioner was on the additional sections of Standards VIth and VIIIth, sanctioned on nogrant basis only for the one academic session, and hence the appointment was in a temporary vacancy and the petitioner accepted the said appointment. It was the further stand that the post was readvertised on 25-8-1993, the petitioner did not apply for the post, and has, therefore, missed the opportunity. In the reply filed before this Court in response to this petition, it is stated in para 2 that in the year 1-9-9192, there was a backlog of one post to be filled by the Scheduled Caste candidate and it was filled in by appointment of one Shri B.R. Bhilawe on 24-8-1992.

7. The Education Officer (Secondary), Zilla Parishad, Nagpur, has filed his reply to this petition, stating that the petitioner was holding the essential qualifications of S.S.C., D.Ed. and belongs to Scheduled Caste category. Her appointment was in a Middle School by an order dated 19-11-1992 pursuant to an advertisement dated 17-7-1992, in which the post was reserved for Scheduled Caste category. The appointment of the petitioner was approved for one session only. In para 5 of the reply, the stand is taken as under :

"5.It is submitted that, the post was reserved for Scheduled Caste and it was obligatory on the part of the respondent No.1 Management to appoint the Scheduled Caste candidate on two year probation period and not for specific period without reason. In the instant matter the petitioner came to be appointed w.e.f. 19.11.1992 to the end of Session 30.4.1993 only for specific period, even though they were aware that the petitioner belongs to Scheduled Caste and therefore, not making appointment of the petitioner as per M.E.P.S. Act. The respondent No.1 was responsible and as such the instant petition may kindly be decided on its merit, which may accordingly so decided."

8. The School Tribunal has recorded the finding that the petitioner was fully qualified for being appointed to the post of an Assistant Teacher. The appointment order issued to the petitioner clearly shows that it is for a specific period, that is for one academic session with effect from 19-11-1992 and it was not on probation for a period of two years. It has further been held that the appointment was in a temporary post and not in a permanent or clear vacancy. Even the approval granted by the Education Officer on 3-6-1993 reveals that it is only for one session commencing from 19-11-1992, and hence she had no right to continue on the post.

9. It is not in dispute that the petitioner belongs to Scheduled Caste (Mahar) category and was appointed as a Middle School Teacher by an order dated 19-11-1992 on temporary basis for a period of one academic session, at the end of which she was terminated by the notice dated 3-4-1993 with effect from 4-5-1993. It is also not in dispute that the petitioner was fully qualified for being appointed as a Middle School Teacher, as she was possessing the qualifications of S.S.C., D.Ed.

10. It is the stand of the Management that the appointment of the petitioner was not in a permanent vacancy, but it was in a vacancy, which was created due to sanction of additional Middle School Sections of Standards VIth and VIIIth. Though it was not the stand before the School Tribunal that the petitioner was not appointed against the post reserved for Scheduled Caste category; before this Court, it is urged that her appointment was not in a post reserved for Scheduled Caste category. The question, which falls for consideration, is whether the appointment of the petitioner on 19-11-1992 was in a permanent vacancy reserved for Scheduled Caste candidate and, therefore, she was required to be appointed on probation in terms of sub-section (2) of Section 5 of the MEPS Act read with Rule 9(8) of the MEPS Rules.

11. The letter dated 20-1-1992 issued by the Education Officer, addressed to the Head Master of the School, prior to the appointment of the petitioner, grants approval to the appointments of seven Teachers for Academic Session 199192 only, subject to the condition that the backlog shall be filled in the next academic session. This is the averment made in para 9 of the memo of appeal in conformity with the aforesaid letter placed before the School Tribunal, which has not been denied.

12. On 17-7-1992, an advertisement was issued in the newspaper "Nagpur Patrika" inviting the applications for the posts of Teachers as under :

“NAGPUR PATRIKA
Date : 17/07/1992
W A N T E D
1) B.A., B.P.Ed.
2) S.S.C., D.Ed.
Reserve for (S.C./S.T./N.T.)
Attend interview with original document on 25792 at 1.00 P.M.
N.D. Kadukar	W.N. Telrendhe
President,	Head Master,
Mahatma Jyotiba	Mahatma Jyotiba
Fule Vidyalaya,	Fule Vidyalaya,
Bhandarbodi,	Bhandarbodi Tah.
Tah. Ramtek,	Ramtek, Distt.
Distt.Nagpur	Nagpur. 3453"

Perusal of the aforesaid advertisement shows that the applications were invited for one post of Assistant Teacher possessing the qualifications of B.A., B.P.Ed., and for two posts of Assistant Teachers possessing the qualifications of S.S.C., D.Ed. It is urged by Dr. Anjan De, the learned counsel for the Management, that the applications were invited only for two posts and the figures "1" and "2" mentioned in the advertisement indicate the serial numbers and not the number of posts. The contention cannot be accepted, for the reason that all the three posts were reserved - the first was for Scheduled Caste, the second was for Scheduled Tribe, and the third was for Nomadic Tribe, which is apparent from the advertisement itself. Obviously, one post with the qualifications of B.A., B.P.Ed. was of a High School Teacher, whereas two posts with the qualifications of S.S.C., D.Ed. were of the Middle School Teachers.

13. In response to the advertisement, the petitioner possessing the qualifications of S.S.C., D.Ed. was appointed as an Assistant Teacher by an order dated 19-11-1992, whereas one Ku.V.R. Harode possessing the qualifications of S.S.C., D.Ed. was appointed as such on 17-8-1992, and another Shri B.R. Bhilawe possessing the qualifications of B.A., B.P.Ed. was appointed on 24-8-1992. These are the specific averments made in para 9 of the memo of appeal, which are not denied. This, therefore, reinforces the aforesaid view that in fact the advertisement was for three posts, which were in fact filled in and not for two posts, as urged.

14. By an order dated 22-4-1993, the Education Officer granted his approval to the initial appointments of seven Teachers made during Academic Session 1992-93 with a condition that the backlog existing in the Institution should be filled in. On 3-6-1993, another order was passed by the Education Officer granting approval to additional five Teachers for Academic Session 19-9-293, which included the name of the petitioner showing the qualifications of S.S.C., D.Ed., the name of Ku. V.R. Harode showing the qualifications of S.S.C., D.Ed., and the name of Shri B.R. Bhilawe showing the qualifications of B.Sc., B.P.Ed. It is the specific averment made in the memo of appeal that the appointment of the petitioner was against the post reserved for Scheduled Caste candidate, which has not been denied. The repeated instructions of the Education Officer that the backlog of the Scheduled Caste candidate be filled in were satisfied and hence the stand of the Education Officer before this Court is that the appointment of the petitioner was against the reserved vacancy. This stand is accepted and I, therefore, hold that the appointment of the petitioner was against a post reserved for Scheduled Caste category.

15. It is the stand of the Management that the sanction for the additional Seasions during Academic Session 19-9-394 was received in the month of August 1993 and hence an advertisement was issued on 25-8-1993 calling the applications from the eligible candidates for the post of Assistant Teacher possessing the qualifications of B.A., B.Ed. or B.P.Ed. and S.S.C., D.Ed. It is not in dispute that again the advertisement was for three posts, which were reserved for Scheduled Caste, Scheduled Tribe and Nomadic Tribe. The other two Teachers, viz. Shri B.R. Bhilawe, B.A., B.P.Ed.; and Ku. V.R. Harode, S.S.C., D.Ed., were continued by making fresh appointments for the next Academic Session 1993-94, pursuant to the said advertisement. The facts that these two Teachers were appointed along with the petitioner initially in the Session 1992-93 and were continued in 1993-94 onwards are not disputed.

16. It is the stand that the appointment of the petitioner was in a temporary vacancy. The temporary vacancy means a vacancy caused due to deputation or leave of the person holding the post substantively. It is not the case that the appointment of the petitioner was either in a leave or deputation vacancy. There is nothing to justify the stand that the appointment was in a temporary vacancy. All the three vacancies advertised on 25-8-1993, were the additionally sanctioned vacancies due to increase in the strength of students. It is not the case of the Management that the post held by the petitioner during the Session 1992-93 was abolished after the termination of the petitioner on 4-5-1993. On the contrary, the stand is that the post held by the petitioner was advertised again on 25-8-1993, but the petitioner did not apply for the said post. Thus, the post held by the petitioner and the other two Teachers were permanent. In view of this, the petitioner is entitled to the same treatment as was provided to the other two candidates.

17. Dr. Anjan De, the learned counsel for the Management, has invited my attention to the decision of the Full Bench of this Court in the case of Ramkrushna Chauhan v. Seth D.H. High School and others, reported in 2013(2) Mh.L.J. 713 : [2013(3) ALL MR 1], and has urged that a specific question was framed and answered, holding that it is not open to the School Tribunal to hold that the employee would be deemed to be on probation within the meaning of Section 5(2) of the MEPS Act 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 was made in a temporary vacancy.

18. Dr. Anjan De has further relied upon another decision of the Full Bench of this Court in the case of Shikshan Prasarak Mandal, Akola and others v. Laxmikant Balkrishna Joshi and others, reported in 2004(1) Mh.L.J. 619 : [2004(1) ALL MR 719 (F.B.)], to urge that while answering the question of reference, the Full Bench exercises advisory and consultative jurisdiction and not original jurisdiction under Article 226 of the Constitution of India. He submits that it is not open for the Single Judge of this Court to lay down as to what is the ratio and what is not the ratio of the Full Bench. According to him, the Single Judge of this Court is bound to follow the consequences of answering the question in the negative by the Full Bench in Ramkrishna Chauhan's case.

19. The object of the MEPS Act is to regulate recruitment and conditions of service of employees with a view to providing security and stability of service to enable them to discharge their duties towards the pupils effectively and efficiently. The precarious conditions of the employees in a private school prevailing prior to coming into force of the said Act, and the object of bringing into force of the said Act have been very succinctly and aptly highlighted by Dr. D.Y. Chandrachud, J. (as he then was the Judge of this Court) in his judgment in the case of Matoshri Ramabai Ambedkar Vidyarthi Vasatigruh Trust and another v. Bharat D. Hambir and another, reported in 2009 (2) Mh.L.J. 121, in para 5A therein as under :

"5A.Of late, there is a growing tendency of managements of private schools to appoint temporary employees from year to year, even though the vacancy is permanent and an adequate work load is available. This leads to grave uncertainty for teachers and places them at the mercy of the managements. The temporary appointment of a teacher who questions unethical practices of the management is promptly terminated. He or she who questions is cast away. Those who turn a blind eye or worse, become willing participants in a pattern of exploitation, are retained. This is a perversion of what was intended by the State legislation enacted in 1977. Placing teachers in a state of eternal uncertainty is destructive of the cause of education. In numerous cases before this Court, the grievance is that teachers of aided institutions are being subjected to extortionate demands by unscrupulous managements. Education has become a business and managements of private schools, with notable exceptions, are becoming pirates in the high seas of education. The interpretation of section 5 of the Act must be purposive - one that would attain the statutory object and not lead to a negation of statutory intent. Once a permanent vacancy arises, a management is duty bound statutorily to fill it up by appointing a duly qualified candidate on probation. The vacancy must be advertised to allow equal opportunity to eligible candidates. A regular process of selection must be held. A duly qualified candidate has to be appointed. Temporary appointments can by definition be made when the vacancy is temporary. In such cases, the exigencies of education require that students must be imparted education and a vacancy even for a short period will cause serious hardship. But temporary appointments are an exception. Making temporary appointments the rule is to give a tool of subversion to the hands of unethical managements. Temporary appointments, followed as a practice become a tool of subversion because they perpetuate a regime of uncertainty about service, place the teacher in a position of perpetual fear and deprive teacher of the stability needed to contribute to the process of moulding young minds. This Court must emphasise with all the authority at its command that a subversion of statutory intent should not be allowed. The Court will not allow itself to be a mute by stander to the growing trend of a lack of ethics in the management of private schools. Judicial intervention is warranted in order to preserve the statutory intent."

20. In the light of the aforesaid purpose of the MEPS Act, the provisions of Section 5 therein, need to be seen. The same are, therefore, reproduced below :

"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 sub-sections (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 sub-sections (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.

(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 required period of probation for the purposes of sub-section (2).

(4A) Nothing in sub-section (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 sub-section (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."

21. Section 5 of the MEPS Act creates certain statutory obligations upon the Management to provide security, stability and protection in service to the employees, more particularly when grantinaid is provided to run the School and/or to pay the salaries of the employees from the State exchequer. The School in question is being run on grantinaid basis from the State Government. The obligations created under Section 5 of the MEPS Act are the same in respect of all kinds of the employees - whether appointed against the vacancies for open candidates or the candidates belonging to backward class categories. The provision of Section 5 is, therefore, required to be construed to attain the objects of the MEPS Act, as are highlighted in the judgment of this Court in the case of Matoshri Ramabai Ambedkar Vidyarthi Vasatigruh Trust, cited supra.

22. In exercise of rulemaking power conferred by Section 16 of the MEPS Act, the rules are framed called as "the MEPS Rules", which, however, lay down a separate procedure for appointment of persons belonging to several backward class categories, like SC, ST, DT/NT, OBC and SBC, as are specified under sub-rule (7) of Rule 9 in tune with the constitutional objects of providing reservations under Articles 15 and 16 of the Constitution of India in the matter of employment. Sub-rules (8) and (9)(a) of Rule 9 of the MEPS Rules being relevant, are reproduced below :

"(8) For the purpose of filling up the vacancies reserved under sub-rule (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 organisations of persons belonging to Backward Classes, by whatever names such associations or organisations are called, and which are recognised by Government for the purposes of this sub-rule 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 organisations as aforesaid or if no such names are recommended by the Employment Exchange or the District Social Welfare Officer or such associations or organisations as aforesaid within a period of one month the Management may proceed to fill up the reserved post in accordance with the provisions of sub-rule (9)."

"(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 sub-rule (7) and if no person from any of the categories is available, the post may be filled in temporarily or an year-to-year basis by a candidate not belonging to the Backward Classes.'

Sub-rule (8) of Rule 9, reproduced above, is directed to provide an equal opportunity in the matter of employment, as guaranteed by Articles 14 and 16 of the Constitution of India, to the persons belonging to different backward class categories, for which specific percentage of reservation is stipulated under sub-rule (7) of Rule 9 of the MEPS Rules. If a person belonging to a particular category of backward classes for which the post is reserved becomes available and found suitable, then his appointment cannot be made on a temporary or an year-to-year basis, but it has to be made on probation for a period of two years, as stipulated under sub-section (2) of Section 5 of the MEPS Act. This point is no longer res integra, in view of the decision of the Apex Court in case of Shakuntala G. Shirbhate v. Industrial Weaving Cooperative Society, reported in AIR 1994 SC 36.

23. It is not the case of the Management that the appointment of the petitioner was not made by following the provisions of sub-rule (8) of Rule 9 of the MEPS Rules. The advertisement was issued in the newspaper showing the reservation for the post of Scheduled Caste category in terms of sub-rule (8) of Rule 9, and the petitioner was selected and appointed to the said post on 19-11-1992. There is no dispute that the petitioner was qualified for appointment to the post, which was filled in the manner prescribed for filling in the permanent vacancy, as contemplated by sub-section (1) of Section 5 of the MEPS Act read with sub-rule (8) of Rule 9 of the MEPS Rules. It is the specific stand of the Education Officer, as reproduced in para 7 above "that the post was reserved for Scheduled Caste and it was obligatory on the part of the respondent No.1 Management to appoint the Scheduled Caste candidate on two year probation period and not for specific period without reason." The appointment of the petitioner on 19-11-1992 has, therefore, to be treated as an appointment on probation in a permanent vacancy.

24. Coming to the decision of the Full Bench of this Court in the case of Ramkrushna Chauhan, [2013(3) ALL MR 1] cited supra, relied upon by Dr. Anjan De for the Management, I have considered the said decision in Writ Petition No.2084 of 2013 (Shamin Azad Education Society, Giroli, Tq. Manora, Distt. Akola, through its President and others v. The Presiding Officer, School Tribunal, Amravati, and others), decided on 3-3-2014. It has been held that the ratio of the Full Bench decision cannot be construed as creating an absolute bar to the jurisdiction of the School Tribunal under Section 9 of the MEPS Act to consider and decide the question as to whether in the facts and circumstances of the case, an order of appointment on temporary basis or for a fixed period in a permanent vacancy cannot be treated as one on probation and the employee is entitled to protection in service, in a challenge to the order of termination. It is not the ratio of the Full Bench that under no circumstances the School Tribunal can go behind the order of appointment and to record the finding that such appointment should be made on probation. The relevant consideration in the said judgment is contained in paras 16 and 17, which are reproduced below :

"16. Sub-section (1) of Section 5 does not speak to the nature of appointment to be made whether temporary or for a fixed period or on probation or on permanent basis. It does not create an obligation to appoint a person on probation if he is appointed to fill in the permanent vacancy. Sub-section (2) therein creates an obligation to appoint a person on probation for a period of two years in a permanent vacancy. This provision is held by the Full Bench to be enabling and it does not take away the implicit power of the Management to make appointment on temporary basis or for a fixed period even in a permanent vacancy. The Management may have several good reasons for making an appointment on temporary basis in a permanent vacancy, including that the post is reserved for a candidate belonging to a backward class category and no suitable candidate from such category is available, or that the Management wants to have a wider choice of the candidate, which is not available. Hence, the power under sub-section (2) of Section 5 is held to be discretionary."

"17. The exercise of discretion under sub-section (2) of Section 5 has to be by keeping in view the object of enactment and the exigencies of the administration. If the exercise of discretion is found to be arbitrary, unreasonable, capricious or is a colourable exercise of power to defeat the protection in service granted by the statutory provisions, then the Court is empowered even to invoke the principles of "lifting the veil" to find out the real reason of making an appointment on temporary basis, and if the action is not found to be bona fide, an appropriate direction can be issued to provide protection in service by treating the appointment on probation, even if it is shown to be on temporary basis or for a fixed period. This is the view propounded by the Full Bench, which is in conformity with the object and the provisions of the MEPS Act. The ratio of the decision of the Full Bench cannot be construed as creating absolute bar to the jurisdiction of the School Tribunal under Section 9 of the MEPS Act, to consider and decide the question as to whether in the given facts and circumstances of the case, an order of appointment on temporary basis or for a fixed period in a permanent vacancy cannot be treated as one on probation and the employee is entitled to protection in service, in a challenge to the order of termination. The question of law framed in para 2 of the judgment of the Full Bench answered in the negative in para 28 therein and the connected observations made in paras 18 and 24, therefore, need to be construed in this manner. Any other interpretation will be contrary to the object and the purpose of the Act and the provisions of Section 5, and shall be in dilution of the ratio of the decision."

In view of the aforesaid judgment, the point urged by Dr. Anjan De for the Management, stands concluded.

25. Coming to the decision of the Full Bench of this Court in the case of Shikshan Prasarak Mandal, [2004(1) ALL MR 719] cited supra, it is not possible to accept the argument of Dr. Anjan De for the Management. No doubt, the Full Bench of this Court in Shikshan Prasarak Mandal's case, [2004(1) ALL MR 719 (F.B.)] cited supra, has held that the jurisdiction exercised by the Full Bench is advisory and consultative in nature, which is not akin to the jurisdiction of the High Court under Article 226 of the Constitution of India. The question involved before the said Full Bench was, whether the Full Bench has power to review its own decision. The Full Bench has held that in the absence of there being any power, the power under Article 226 of the Constitution of India to seek review of the decision of the Full Bench cannot be invoked. The principles of interpretation of the judgments are common, irrespective of the jurisdiction exercised to deliver the judgment and there can be no different principles for interpretation of the judgment delivered in exercise of jurisdiction under Article 226 and/or Article 227 of the Constitution and the one delivered in advisory or consultative jurisdiction. What binds this Court is the ratio, which is the reasoning of the decision on the abstract propositions of law. The Single Judge of this Court has certainly the jurisdiction to decide as to what is the ratio, and what is not the ratio of the decision given by the Full Bench. It is the ratio of the decision of the Full Bench, which binds, and what is not the ratio, is not binding on the Single Judge.

26.Though this Court has held that the appointment of the petitioner on 19-11-1992 was required to be treated as on probation, this petition cannot straightway be allowed, directing reinstatement with continuity in service and back wages to the petitioner. The termination is of 4-5-1993. The appeal was preferred in the year 1993 itself and thus about 20 years have lapsed. The questions as to whether the service rendered by the petitioner for a period of one academic session was to the satisfaction of the Management, and whether the Management was entitled to terminate the services in exercise of its power under sub-section (3) of Section 5 of the MEPS Act, will have to be gone into. The relief to which the petitioner is entitled, will have to be considered by the School Tribunal. Section 11 of the MEPS Act confers the powers upon the School Tribunal as under :

"11. Powers of Tribunal to give appropriate relief and direction.

(1) On receipt of an appeal, where the Tribunal, after giving reasonable opportunity to both parties of being heard, is satisfied that the appeal does not pertain to any of the matters specified in section 9 or is not maintainable by it, or there is no sufficient ground for interfering with the order of the Management it may dismiss the appeal.

(2) Where the Tribunal, after giving reasonable opportunity to both parties of being heard, decides in any appeal that the order of dismissal, removal, otherwise termination of service or reduction in rank was in contravention of any law (including any rules made under this Act), contract or condition of service for the time being in force or was otherwise illegal or improper, the Tribunal may set aside the order of the Management, partially or wholly, and direct the Management,-

(a) to reinstate the employee on the same post or on a lower post as it may specify;

(b) to restore the employee to the rank which he held before reduction or to any lower rank as it may specify;

(c) to give arrears of emoluments to the employee for such period as it may specify;

(d) to award such lesser punishment as it may specify in lieu of dismissal, removal, otherwise termination of service or reduction in rank, as the case may be;

(e) where it is decided not to reinstate the employee or in any other appropriate case, to give to the employee twelve months' salary (pay and allowances, if any) if he has been in the services of the school for ten years or more and six months salary (pay and allowances, if any) if he has been in service of the school for less than ten year, by way of compensation, regard being had to loss of employment and possibility of getting or not getting suitable employment thereunder, as it may specify; or

(f) to give such other relief to the employee and to observe such other conditions as it may specify, having regard to the circumstances of the case.

(3) It shall be lawful for the Tribunal to recommend to State Government that any dues directed by it to be paid to the employee, or in case of an order to reinstate the employee any emoluments to be paid to the employee till he is reinstated, may be deducted from the grant due and payable, or that may become due and payable in future, to the Management and be paid to the employee direct.

(4) Any direction issued by the Tribunal under sub-section (2) shall be communicated to both parties in writing and shall be complied by the Management within the period specified in the direction, which shall not be less than thirty days from the date of its receipt by the Management."

In view of the aforesaid provision, the matter will have to be sent back to the School Tribunal with a direction to permit the parties to amend their pleadings and to lead evidence, if any, on all such aspects, which are left to be decided by the School Tribunal.

27. In view of above, this petition is partly allowed. The judgment and order dated 18-4-2001 passed by the School Tribunal, Nagpur, in Appeal No.STN/243 of 1993, is hereby quashed and set aside after holding that the appointment of the petitioner on 19-11-1992 is to be treated as one on probation. The parties to appear before the School Tribunal on 30-4-2014. The School Tribunal to record its findings on the two questions, viz. (i) Whether the Management proves that the service rendered by the petitioner was unsatisfactory; and (ii) What relief the petitioner is entitled to; and to decide the appeal within a period of eight months from the date of the first appearance of the parties before it. The School Tribunal shall not reopen the issues, which are decided by this judgment.

28. Rule is partly made absolute in above terms. No order as to costs.

Petition partly allowed .