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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
Writ Petition No.4099 of 1998,
Writ Petition No.4095 of 1998,
And
Writ Petition No.4097 of 1998
Writ Petition No.4099 of 1998
1. Maharashtra Addhyan Mandir,
Gandhinagar, Nagpur,
through its Secretary Shri D.B. Deotale,
R/o Gandhi Nagar, Nagpur.
2. Maharashtra Addhyan Mandir
High School, through its
Head Master, Gandhi Nagar,
Nagpur. ... Petitioners
Versus
1. Deepak s/o Balajipant Supsande,
aged about 34 years,
R/o C/o B.G. Deshmukh,
Gandhinagar, Nagpur.
2. The Deputy Director,
Divisional Board,
Technical Education,
Civil Lines, Nagpur.
3. The Presiding Officer,
School Tribunal,
Civil Lines, Nagpur. ... Respondents
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Writ Petition No.4095 of 1998
1. Maharashtra Addhyan Mandir
Gandhinagar, Nagpur, through
its Secretary Shri D.B. Deotale,
R/o Gandhi Nagar, Nagpur.
2. Maharashtra Addhyan Mandir,
High School, through its
Head Master, Gandhi Nagar,
Nagpur. ig ... Petitioners
Versus
1. Rajendra s/o Tukaramji Dhakre,
aged about 33 years,
Occ. Service,
R/o C/o G.G. Ukinkar,
Near Ayurvedic Hospital,
Telangkhedi, Ramnagar,
Nagpur.
2. Deputy Director,
Divisional Board,
Technical Education,
Civil Lines, Nagpur.
3. The Presiding Officer,
School Tribunal, Civil Lines,
Nagpur. ... Respondents
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Writ Petition No.4097 of 1998
1. Maharashtra Addhyan Mandir,
Gandhinagar, Nagpur, through
its Secretary Shri D.B. Deotale,
R/o Gandhi Nagar, Nagpur.
2. Maharashtra Adhyan Mandir
High School, through its
Head Master, Gandhi Nagar,
Nagpur. ... Petitioners
Versus
1. Dhanraj s/o Marotrao Hiwase,
aged about 38 years,
Occ.: Service,
R/o C/o Shri Mahadeorao Wagh,
Plot No.19, Bajrang Nagar,
Manewada Road, Nagpur.
2. Deputy Director,
Divisional Board,
Technical Education,
Civil Lines, Nagpur.
3. The Presiding Officer,
School Tribunal,
Civil Lines, Nagpur. ... Respondents
In Writ Petition No.4099 of 1998 and Writ Petition No.4095 of
1998 :
Shri R.S. Parsodkar, Advocate for Petitioners.
Shri P.C. Madkholkar, with Shri Deepak Gupta, Advocates for
Respondent No.1.
Shri A.M. Deshpande, AGP for Respondent Nos.2 and 3.
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In Writ Petition No.4097 of 1998 :
Shri R.S. Parsodkar, Advocate for Petitioners.
None for Respondent No.1.
Shri A.M. Deshpande, AGP for Respondent Nos.2 and 3.
CORAM : R.C. Chavan, J.
Reserved on : 10-6-2009
Pronounced on : 22-6-2009
Judgment :
1. These three petitions by the petitioner-Society are
directed against the orders passed by the School Tribunal in
Appeal Nos.200, 201 and 121 of 1991 filed by respondents in
each of the three petitions.
2. Facts, which are material for deciding the petitions,
are as under :
The petitioner-Society runs a School in which it
wanted to start courses for training students as electricians,
carpenters and wiremen. Such a permission was granted to
the petitioner-Society in 1988. On 22-7-1988, Rajendra
Tukaram Dhakre, respondent No.1 in Writ Petition No.4095 of
1998 was appointed as a part time Instructor for the trade of
carpentry for a period from 22-7-1988 to 30-4-1989. His
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appointment was continued from 27-4-1989 till 30-4-1990.
From 1-7-1990 to 30-4-1991, he was appointed as a full time
Teacher on a purely temporary basis. Respondent No.1
Dhanraj in Writ Petition No.4097 of 1998 was appointed in the
year 1988 for the trade of Electrician as a part-timer on a
temporary basis, from 3-8-1988 to 30-4-1989, which
appointment was likewise continued from 24-7-1989 to
30-4-1990. From 1-7-1990 to 30-4-1991, he was appointed as
a full time Teacher on a temporary basis. Respondent Deepak
Supsande in Writ Petition No.4099 of 1998 was appointed as
Instructor in the trade of fitter as a part-timer on 24-7-1989.
From 1-7-1990, he was appointed as a full time Teacher on a
purely temporary basis.
3. The services of all these Teachers were not
continued after June 1991 and, therefore, they approached the
School Tribunal by preferring appeals. They contended that
they were entitled to continuation on completion of the period
of probation and, therefore, termination was not good. The
Management contested this position by filing a reply before
the School Tribunal. After considering the claims of both the
parties, the learned Presiding Officer of the School Tribunal
allowed the appeals by the respondent-Instructors and
directed the petitioner-Management to reinstate all the three
Instructors and also to pay back wages to them. It is not in
dispute that the trades in question were discontinued by the
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School by 30-4-1992. Therefore, the wages were ordered to
be paid till that date. Aggrieved thereby, the Management is
before this Court by filing the three petitions.
4. I have heard Shri R.S. Parsodkar, learned counsel for
the petitioner-Management, and Shri P.C. Madkholkar, learned
counsel for respondents in Writ Petition No.4095 and 4099 of
1998. Shri N.D. Khamborkar, learned counsel in Writ Petition
No.4097 of 1998, was not available. I have also heard Shri
A.M. Deshpande, learned AGP for respondent No.2 – The
Deputy Director, Divisional Board, Technical Education,
Nagpur.
5. The learned counsel for the respondent-Instructors
submitted that the first appointment order, which is sought to
be produced before this Court, was in fact not before the
School Tribunal. He, therefore, submitted that the orders
dated 24-7-1989 should not be taken into consideration as
they were not before the Tribunal. The learned counsel for the
petitioners submitted that it was in fact for the respondent-
Instructors to file the appointment orders before the School
Tribunal. The respondents have not stated that the orders are
false or fabricated or that the orders, which are produced
before this Court, are not the ones by which they came to be
appointed. Though it is mentioned in para 3 of the return filed
on behalf of respondents No.1 in Writ Petition No.4095 of 1998
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and 4099 of 1998 that Annexure 1 was never supplied to the
petitioners and that it was “prepared and falsified document”,
the contention cannot be accepted, since in the very same
paragraph of the return, the respondents have accepted that
the petitioners used to pay them salary of Rs.250/- per month.
6. Respondent Dhanraj in Writ Petition No.4097 of 1998
has not at all filed any return and, therefore, he may not be
heard to say that the appointment order filed as Annexure 1 in
his petition dated 3-8-1988 was not the one whereby he was
appointed as part-time Instructor in the trade of electrician, is
false.
7. In view of this, it is clear that the appointment of the
respondents by the petitioner-Management for the first time
was on a part-time basis and was not a full time appointment.
Therefore, that appointment or the service rendered pursuant
thereto cannot count for the purpose of considering whether
the respondents had successfully completed their probation,
if they are taken to have been appointed on probation. In the
appointment order from 1-7-1990 to 30-4-1991, the words
“your appointment is on probation for a period of two years”
have not been scored out. It is not in dispute that after June
1991, the respondents were not permitted to render services.
8. According to the learned counsel for the petitioners,
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on 11-7-1991, an advertisement was issued for appointment of
Instructors in the trades of fitter, wireman and carpenter. This
advertisement is at Annexure 6 of the petition. In pursuance
to this advertisement, respondent Deepak Supsande in Writ
Petition No.4099 of 1998 had applied. It is not shown that the
other respondents had applied in pursuance to the
advertisement. The learned counsel for the petitioners
submitted that in view of the application by respondent
Deepak Supsande, he cannot make out a grievance that he
was entitled to confirmation in terms of his first appointment.
If the Management comes with a case that the first
appointment was on a part-time basis and the second
appointment was for a fixed period of one year only, it too
cannot make out a grievance about the respondents’ applying
in pursuance of the advertisement. It does not amount to
acquiescing in the position that his termination was valid.
9. The learned counsel for the petitioners submitted
that the School Tribunal was not justified in holding that the
respondents in the three petitions had been appointed on
probation and, therefore, could not have been discontinued
after the term of their appointment came to an end on
30-4-1991. He submitted that failure to score out the words to
the effect that “the appointment was on a probation for a
period of two years” was insignificant, particularly in the
context of the fact that the specific period of ten months, i.e.
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from 1-7-1990 to 30-4-1991, had been spelt out in the very
para 2 of the appointment order.
10. The learned counsel for the respondents submitted
that this failure to score out is significant and is not a mere
clerical error. He submitted that it was open for the
Management to score out the relevant words in order to give a
clear signal to the employee as to the terms of his
appointment. Failure to score out the words that the
appointment was on a probation was justifiably understood by
the respondent-employee as appointment on probation.
11. Much ado need not be made of the failure to score
the relevant clause, particularly since such a clause would be
ruled out in view of the specific period of appointment
mentioned in the same paragraph of the appointment order.
This would rule out that the appointment was on a probation
for a period of two years.
12. The learned counsel for the respondent-employees
next submitted that the appointment of the respondents may
be taken to have been on a probation for a period of two years
in view of the provisions of Section 5 of the Maharashtra
Employees of Private Schools (Conditions of Service)
Regulation Act, which make it obligatory for the Management
to appointment an employee in a permanent vacancy on
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probation for a period of two years.
13. Sub-Section (2) of Section 5 of M.E.P.S. Act reads as
under :
“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 (3) and (4), he shall, on completion of this
probation period of two years, be deemed to havebeen confirmed: Provided that, every person
appointed as shikshan sevak shall be on probation fora period of three years.”
14. The learned counsel for the respondents submitted
that this provision has been considered by this Court in a
number of cases.
15. In Hindi Vidya Bhavan, Mumbai and others v.
Presiding Officer, School Tribunal, Mumbai and others,
reported at 2007(6) Mh.L.J. 563, the Court had held that if a
person duly qualified is appointed by the Management and it
is not disputed that such a person has worked for two years on
a permanent vacancy, he is deemed to have been confirmed
as provided under Section 5(2) of the M.E.P.S. Act and non-
approval of such post would not be an embargo on the
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Management to make him permanent.
16. In Yogeshwar Vikas Sanstha and others v. Rajendra
T. Shinde and another, reported at 2007(6) Mh.L.J. 698, this
Court had held that when the employee is appointed against a
clear vacancy, though the letter of appointment mentions that
the appointment is only for a specific period, the appointment
must be considered as one on probation and, therefore,
upheld the order of reinstatement of the employee passed by
the School Tribunal.ig
17. In both these cases, the judgment of the Supreme
Court in Hindustan Education Society and another v. Sk.
Kaleem Sk. Gulam Nagi and others, reported at (1997) 5 SCC
152, had not been cited or noticed.
18. In Matoshri Ramabai Ambedkar Vidyarthi Vasatigruh
Trust and another v. 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::: Downloaded on – 09/06/2013 14:42:22 :::
12respondent was appointed with effect from 14th June,
2004 as an Assistant Teacher. The first respondentis 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
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permanent vacancy has to be appointed on
probation.”
19. 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, as pointed
out by the learned counsel for the petitioner, 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.
20. In Jagdamba Education Society, Nagpur v. Rajendra
s/o Baburao Golhar and others, reported at 2009(2) Mh.L.J.
522, after considering the provisions of Section 5 of M.E.P.S.
Act, this Court held that the appointment on year-to-year basis
mentioning that the appointment was temporary, would not
make it to be of temporary nature, since the vacancy in
question was permanent one when the first order of
appointment was made. In para 9 of the judgment, the Court
had specifically observed that the person so appointed to fill in
permanent vacancy shall be on probation for a period of two
years. The Court had also considered Rule 10 of the
Maharashtra Employees of Private Schools (Conditions of
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Service) Rules as also the relevant provisions of Rule 9
regarding appointment of staff. In para 15, reliance was
placed on the judgment of the Division Bench of this Court in
Diwaru s/o Ramaji Madavi v. The Presiding Officer, School
Tribunal and another, reported at 1991(1) CLR 272, where too
relying on the provisions of sub-section (2) of Section 5 of the
M.E.P.S. Act, it was held that the person appointed to fill in
permanent vacancy shall be on probation.
21. In President, Mahila Mandal, Sinnar and another v.
Sunita Bansidhar Patole, reported at 2007(2) Mh.L.J. 105, the
Court considered the provisions of Section 5 of the M.E.P.S. Act
and it may be useful to reproduce the observations in
paragraphs 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 byappointment 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 indispute 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.
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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). Once there is an
appointment in accordance with 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 all 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.”
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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) or (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
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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, such such
appointment was after following the procedure
prescribed for appointing a period 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 v. 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::: Downloaded on – 09/06/2013 14:42:23 :::
18would show that it applies to a person who
is put on probation consequent upon hisappointment 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 beattracted. As already observed, there is nothing
called “appointment on probation”.
ig Once the
appointment is made in terms of section 5(1) it takes
colour of appointment on probation, by virtue of theprovisions comprised under sub-section (2) and that
is what has been held by the Apex Court in the
above decision.”
However, it may also be noted that even in this judgment, the
judgment of the Supreme Court in Hindustan Education
Society had not been noticed.
22. The learned counsel for the petitioners submitted
that sub-section (2) of Section 5 of the M.E.P.S. Act had been
considered by the Supreme Court in Hindustan Education
Society. In that case, the appointment was for 11 months
against a clear vacancy. After considering the provisions of
Section 5 of the M.E.P.S. Act, the Court held that the
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appointment could not be considered as permanent and,
therefore, allowed the appeal by the Management.
23. The learned counsel for the petitioners also relied on
a judgment of the Supreme Court in Bharatiya Gramin
Punarrachana Sanstha v. Vijay Kumar and others, reported at
2003(1) Mh.L.J. 563, where these provisions were considered.
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
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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.
24. The learned counsel for the petitioner further
submitted that the provisions of Section 5 of the M.E.P.S. Act
came up for consideration before a Division Bench of this
Court in Priyadarshini Education Trust and others v. Ratis
(Rafia) Bano d/o Abdul Rasheed and others, reported at
2007(6) Myh.L.J. 667. 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
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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….”, itis 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. Ifthere is a permanent vacancy and if a person duly
qualified is selected in the manner prescribed and
then duly appointed, the Management has no choiceor 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
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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 isselected by due process of selection i.e. by
competition ig amongst all eligible and desirous
candidates, and who is appointed on a permanent
vacant post. In other words, inviting applications, asalso 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 nooption 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 toappoint 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::: Downloaded on – 09/06/2013 14:42:23 :::
23clause (i) above, the process of grant of approval by
Education Officer should begin with examination ofselection 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, ortermination is ordered.
(iv)
The appointment of a person not belonging
to reserved category, in a post reserved for aparticular category, because the candidate of that
category is not available, shall be absolutely
temporary and on an year to year basis, governed bysub-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.
25. The learned counsel for the petitioners submitted
that the judgments on which the learned counsel for the
respondents placed reliance, had not taken into consideration
the judgment of the Supreme Court in Hindustan Education
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Society. He submitted that in Hindustan Education Society,
though there was an appointment against a clear vacancy, the
Supreme Court did not hold that such appointment could have
been only on probation, or, in other words, did not interpret
the provisions of sub-section (2) of Section 5 of the M.E.P.S.
Act to create an obligation on the Management to appoint an
employee only on probation. According to the learned counsel
for the petitioners, it would be impermissible to read any such
requirement. The order of appointment would have to be read
as it is and since in these petitions, the appointments were for
a fixed period and on a purely temporary basis, it would be
impermissible to conclude that the appointments were on
probation or that, therefore, the respondents were entitled to
confirmation.
26. The learned AGP submitted that it is pertinent to
note that in Hindustan Education Society, it was specifically
noted by the Supreme Court that the appointment order was
in a clear vacancy. He submitted that in spite of this, the
Court held that the appointment was not against a permanent
post and after reproducing the provisions of Section 5 of
M.E.P.S. Act, restricted the appointment to the terms of
appointment order. He pointed out that even in the case at
hand, the appointment order clearly mentions that the
appointment was purely temporary. He, therefore, submitted
that a clear vacancy does not necessarily imply a permanent
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vacancy. He submitted that possibly the Apex Court was alive
to this distinction and so, it did not hold that the appointment
order had to be interpreted in terms of sub-section (2) of
Section 5 of M.E.P.S. Act. According to the learned AGP, a
vacancy in a School would not become a permanent vacancy
unless the institution has stabilized to a particular strength of
students over a number of years justifying continuation of
vacancy indefinitely, when it would translate itself into a
permanent vacancy. Therefore, according to the learned AGP,
the appointment of the petitioner could not be taken as one on
probation. The learned AGP, therefore, supported the
contention of the petitioner Management that the School
Tribunal could not have held in favour of the respondents.
27. The contention of the learned AGP that a clear
vacancy may not be equated to a permanent vacancy is well-
founded and has to be accepted. In view of the fact that the
appointment orders clearly showed that the appointments
were purely temporary for a period of one year at a time, in
view of the judgment in Hindustan Education Society, it would
not be permissible to hold that the appointments were on
probation and to grant consequential benefits to the
respondents, since it is not shown that vacancies were
permanent. Since the appointments themselves came to an
end after the period mentioned therein expired, there was no
question of the respondents being entitled to continue beyond
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26
those dates.
28. In view of this, the petitions are allowed. The
impugned orders passed by the Presiding Officer, School
Tribunal, are quashed and set aside.
JUDGE.
Pdl.
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