JUDGMENT
B.H. Marlapalle, J.
1. This Petition is directed against the Judgement and order dated 2-12-1998 rendered by the School Tribunal at Pune thereby allowing Appeal No. 64/1995 and by the said order the Respondent No. 1 Teacher was directed to be reinstated in service and to pay the full salary from the date of termination i.e. 30-4-1995 till the date of reinstatement. The Petition was admitted by this Court on 23-3-1999 and the undertaking of the petitioner management to the effect that the Respondent Teacher would be reinstated in service w.e.f. 1-4-1999 and on that condition stay was granted to the order of backwages. There is no dispute that the Respondent Teacher has been reinstated w.e.f. 1-4-1999 and he continues to be in service as of now. Therefore, the only issue that requires consideration is whether the School Tribunal was justified in directing the payment of full salary w.e.f. 30-4-1995 till the date of reinstatement i.e. 1-4-1999.
2. The Respondent Teacher possesses the qualifications of S.S.C.+ D.Ed. and he came to be appointed as an Assistant Teacher in National Marathi Primary School run by the Petitioner No. 1 Society w.e.f. 4-6-1993. The Petitioner No. 1 runs 3 different schools namely National Urdu High school, National Urdu Primary School and National Marathi Primary School. The appointment order specifically stated that it was only for the period from 4-6-1993 to 31-5-1994. The appellant submitted his joining report on 4-6-1993 and his tenure had expired on 31-5-1994. In response to the advertisement for the next academic year 1994-95 he again applied and was issued an appointment order on 26-5-1994 for the period from 30-5-1994 to 31-5-1995, however, in the next academic year 1995-96 he was not appointed and, therefore, he approached the School Tribunal by filing an appeal on or about 4-6-1995. As stated hereinabove the said appeal has been allowed.
3. Before the School Tribunal the Education Officer (Primary) Zilla Parishad, Solapur had filed written-statement and submitted that in the academic year 1993-94 there were four divisions sanctioned in Marathi medium schools and 5 teachers were required. The management had appointed 3 trained teachers and untrained teachers and the appellant was a trained teacher. All the appointments were made on temporary basis and approval was granted for the academic year 1993-94. In the next academic year as well the appointments were made on temporary basis and they were approved for the year 1994-95. On the basis of the submissions made by the Education Officer the School Tribunal recorded a finding that the appellant was appointed on a permanent post continuously for two academic years and, therefore, the appointment was required to be treated as on probation and at the end of the probation period he was deemed to have been confirmed. The procedure for terminating the service of a permanent teacher is set out in Rule-28 of the MEPS Rules, 1981 and as the said procedure was not followed, the termination order was illegal.
4. Mr. Kulkarni, the Learned Counsel for the Petitioner management referred to the decision of the Supreme Court in the case of Hindustan Education Society and Anr. v. Sk. Kaleem Sk. Gulab Nabi and also the decision of this Court in the case of Akbar Peerbhoy College and Ors. v. Mrs. Pramila N. Kutty and Ors. 1997 (3) MLJ 195 and submitted that though the order of termination was just and proper and reinstatement could not have been granted by the School Tribunal, the teacher has already been reinstated but there is no justification to give him the benefit of full backwages. As per Mr. Kulkarni even if it is assumed that the appellant was appointed on probation for a period of two years, the management has right to dispense with his service on completion of the probation period if his service was not found satisfactory or his reputation as a teacher was not upto a mark. Mr. Kulkarni pointed out that it was not a case that the teacher was continued for more than 2 years and, therefore, had attained the status of deemed permanency within the meaning of Section 5(2) of the MEPS Act, 1977 (the Act for short). Section 5(2) reads as under:
Every person appointed to fill a permanent vacancy 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 have been confirmed.
5. The School Tribunal referred to Sub-section 5(2) and held that the appellant had completed 3 years of service and, therefore, was deemed to have been permanent. Such a conclusion cannot be upheld in as much as and without considering the appointment made. Such appointment must specify the requirements of Sub-section 1 of Section 5 which states that the management shall, as soon as possible, fill in the manner prescribed, every permanent vacancy in a private school by the appointment of the person duly qualified to fill such vacancy. The appointment letters issued to the Petitioner do not indicate that he went through any selection process. The advertisements released by the petitioner management are not on record. Even otherwise alongwith the petition the copies of memos issued to the appellant in both the academic years have been brought on record. In addition affidavit of Shri Yusuf Rasulso-Assistant Teacher as well as Mrs. Saipan Mujavar Siddique-Head Mistress has been placed on record. The appellant has not filed any affidavit in reply denying the contentions of the affidavit or the memos addressed to him. All these memos if read together make out a case to doubt the continuation of the appellant in service in the academic year 1995-96 even if he had been appointed on probation. In these obtaining circumstances it would not be just and proper that the appellant is granted full salary for the period from 1-5-1995 to 31-3-1999 and more so when the discontinuation of his appointment on completion of the first academic year was not disputed by him and infact he responded to the advertisement issued for the academic year 1994-95 by submitting an application for fresh employment.
6. In the premises this petition succeeds partly. The impugned order passed by the School Tribunal is confirmed, so far as reinstatement is concerned and on the issue of payment of backwages it is held that the appellant will not be entitled for the same and to that extent the order of payment of backwages is hereby quashed and set aside. However, for the purpose of seniority and retirement benefits etc. the appellant shall be treated to be in service w.e.f. 4-6-1993 onwards without any break.
7. Writ is made absolute accordingly with no order as to costs.