{"id":231736,"date":"2009-06-22T00:00:00","date_gmt":"2009-06-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/maharashtra-addhyan-mandir-vs-deepak-on-22-june-2009"},"modified":"2018-02-21T07:44:56","modified_gmt":"2018-02-21T02:14:56","slug":"maharashtra-addhyan-mandir-vs-deepak-on-22-june-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/maharashtra-addhyan-mandir-vs-deepak-on-22-june-2009","title":{"rendered":"Maharashtra Addhyan Mandir vs Deepak on 22 June, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Maharashtra Addhyan Mandir vs Deepak on 22 June, 2009<\/div>\n
Bench: R. C. Chavan<\/div>\n
                                     1\n\n\n\n\n                                                                            \n             IN THE HIGH COURT OF JUDICATURE AT BOMBAY,\n                        NAGPUR BENCH, NAGPUR\n\n\n\n\n                                                   \n                       Writ Petition No.4099 of 1998,\n                       Writ Petition No.4095 of 1998,\n                                     And\n\n\n\n\n                                                  \n                       Writ Petition No.4097 of 1998\n\n                       Writ Petition No.4099 of 1998\n\n\n\n\n                                        \n    1. Maharashtra Addhyan Mandir,\n                            \n       Gandhinagar, Nagpur,\n       through its Secretary Shri D.B. Deotale,\n       R\/o Gandhi Nagar, Nagpur.\n                           \n    2. Maharashtra Addhyan Mandir\n       High School, through its\n       Head Master, Gandhi Nagar,\n           \n\n       Nagpur.                             ... Petitioners\n        \n\n\n\n       Versus\n\n    1. Deepak s\/o Balajipant Supsande,\n       aged about 34 years,\n       R\/o C\/o B.G. Deshmukh,\n\n\n\n\n\n       Gandhinagar, Nagpur.\n\n    2. The Deputy Director,\n       Divisional Board,\n       Technical Education,\n\n\n\n\n\n       Civil Lines, Nagpur.\n\n    3. The Presiding Officer,\n       School Tribunal,\n       Civil Lines, Nagpur.                ... Respondents\n\n\n\n\n                                                    ::: Downloaded on - 09\/06\/2013 14:42:22 :::\n                                        2\n\n\n\n\n                                                                            \n                        Writ Petition No.4095 of 1998\n\n\n\n\n                                                   \n    1. Maharashtra Addhyan Mandir\n       Gandhinagar, Nagpur, through\n\n\n\n\n                                                  \n       its Secretary Shri D.B. Deotale,\n       R\/o Gandhi Nagar, Nagpur.\n\n    2. Maharashtra Addhyan Mandir,\n       High School, through its\n\n\n\n\n                                          \n       Head Master, Gandhi Nagar,\n       Nagpur.                 ig          ... Petitioners\n\n       Versus\n                             \n    1. Rajendra s\/o Tukaramji Dhakre,\n       aged about 33 years,\n       Occ. Service,\n       R\/o C\/o G.G. Ukinkar,\n       Near Ayurvedic Hospital,\n           \n\n\n       Telangkhedi, Ramnagar,\n       Nagpur.\n        \n\n\n\n    2. Deputy Director,\n       Divisional Board,\n       Technical Education,\n\n\n\n\n\n       Civil Lines, Nagpur.\n\n    3. The Presiding Officer,\n       School Tribunal, Civil Lines,\n       Nagpur.                             ... Respondents\n\n\n\n\n\n                                                    ::: Downloaded on - 09\/06\/2013 14:42:22 :::\n                                      3\n\n\n\n\n                                                                           \n                       Writ Petition No.4097 of 1998\n\n    1. Maharashtra Addhyan Mandir,\n\n\n\n\n                                                  \n       Gandhinagar, Nagpur, through\n       its Secretary Shri D.B. Deotale,\n       R\/o Gandhi Nagar, Nagpur.\n\n\n\n\n                                                 \n    2. Maharashtra Adhyan Mandir\n       High School, through its\n       Head Master, Gandhi Nagar,\n       Nagpur.                            ... Petitioners\n\n\n\n\n                                         \n       Versus\n                              \n    1. Dhanraj s\/o Marotrao Hiwase,\n       aged about 38 years,\n       Occ.: Service,\n                             \n       R\/o C\/o Shri Mahadeorao Wagh,\n       Plot No.19, Bajrang Nagar,\n       Manewada Road, Nagpur.\n\n    2. Deputy Director,\n           \n\n\n       Divisional Board,\n       Technical Education,\n        \n\n\n\n       Civil Lines, Nagpur.\n\n    3. The Presiding Officer,\n       School Tribunal,\n\n\n\n\n\n       Civil Lines, Nagpur.               ... Respondents\n\n\n\n    In Writ Petition No.4099 of 1998 and Writ Petition No.4095 of\n\n\n\n\n\n    1998 :\n    Shri R.S. Parsodkar, Advocate for Petitioners.\n    Shri P.C. Madkholkar, with Shri Deepak Gupta, Advocates for\n    Respondent No.1.\n    Shri A.M. Deshpande, AGP for Respondent Nos.2 and 3.\n\n\n\n\n                                                   ::: Downloaded on - 09\/06\/2013 14:42:22 :::\n                                        4\n\n\n\n\n                                                                         \n    In Writ Petition No.4097 of 1998 :\n    Shri R.S. Parsodkar, Advocate for Petitioners.\n    None for Respondent No.1.\n\n\n\n\n                                                 \n    Shri A.M. Deshpande, AGP for Respondent Nos.2 and 3.\n\n\n\n\n                                                \n                 CORAM : R.C. Chavan, J.\n<\/pre>\n
                 Reserved on : 10-6-2009
\n                 Pronounced on : 22-6-2009<\/p>\n
        Judgment :\n<\/p>\n
        1.       These three petitions by the petitioner-Society are
\n        directed against the orders passed by the School Tribunal in
\n        Appeal Nos.200, 201 and 121 of 1991 filed by respondents in<\/p>\n
        each of the three petitions.\n<\/p>\n
        2.       Facts, which are material for deciding the petitions,
\n        are as under :\n<\/p>\n
                 The petitioner-Society runs a School in which it
\n        wanted to start courses for training students as electricians,
\n        carpenters and wiremen. Such a permission was granted to<\/p>\n
        the petitioner-Society in 1988.     On 22-7-1988, Rajendra
\n        Tukaram Dhakre, respondent No.1 in Writ Petition No.4095 of
\n        1998 was appointed as a part time Instructor for the trade of
\n        carpentry for a period from 22-7-1988 to 30-4-1989.                 His<\/p>\n
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\n                                    5<\/span><\/p>\n
    appointment was continued from 27-4-1989 till 30-4-1990.
\n    From 1-7-1990 to 30-4-1991, he was appointed as a full time<\/p>\n
    Teacher on a purely temporary basis.                   Respondent No.1
\n    Dhanraj in Writ Petition No.4097 of 1998 was appointed in the
\n    year 1988 for the trade of Electrician as a part-timer on a<\/p>\n
    temporary   basis,   from      3-8-1988       to     30-4-1989,           which
\n    appointment was likewise continued from 24-7-1989 to
\n    30-4-1990. From 1-7-1990 to 30-4-1991, he was appointed as<\/p>\n
    a full time Teacher on a temporary basis. Respondent Deepak
\n    Supsande in Writ Petition No.4099 of 1998 was appointed as<\/p>\n
    Instructor in the trade of fitter as a part-timer on 24-7-1989.
\n    From 1-7-1990, he was appointed as a full time Teacher on a<\/p>\n
    purely temporary basis.\n<\/p>\n
    3.       The   services   of    all   these        Teachers        were       not<\/p>\n
    continued after June 1991 and, therefore, they approached the<\/p>\n
    School Tribunal by preferring appeals. They contended that
\n    they were entitled to continuation on completion of the period
\n    of probation and, therefore, termination was not good. The<\/p>\n
    Management contested this position by filing a reply before
\n    the School Tribunal. After considering the claims of both the
\n    parties, the learned Presiding Officer of the School Tribunal<\/p>\n
    allowed the appeals by the            respondent-Instructors and
\n    directed the petitioner-Management to reinstate all the three
\n    Instructors and also to pay back wages to them. It is not in
\n    dispute that the trades in question were discontinued by the<\/p>\n
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\n                                   6<\/span><\/p>\n
    School by 30-4-1992. Therefore, the wages were ordered to
\n    be paid till that date. Aggrieved thereby, the Management is<\/p>\n
    before this Court by filing the three petitions.\n<\/p>\n
    4.        I have heard Shri R.S. Parsodkar, learned counsel for<\/p>\n
    the petitioner-Management, and Shri P.C. Madkholkar, learned
\n    counsel for respondents in Writ Petition No.4095 and 4099 of
\n    1998. Shri N.D. Khamborkar, learned counsel in Writ Petition<\/p>\n
    No.4097 of 1998, was not available.         I have also heard Shri
\n    A.M. Deshpande, learned AGP for respondent No.2 – The<\/p>\n
    Deputy    Director,   Divisional   Board,    Technical       Education,
\n    Nagpur.\n<\/p>\n
    5.        The learned counsel for the respondent-Instructors
\n    submitted that the first appointment order, which is sought to<\/p>\n
    be produced before this Court, was in fact not before the<\/p>\n
    School Tribunal.      He, therefore, submitted that the orders
\n    dated 24-7-1989 should not be taken into consideration as
\n    they were not before the Tribunal. The learned counsel for the<\/p>\n
    petitioners submitted that it was in fact for the respondent-
\n    Instructors to file the appointment orders before the School
\n    Tribunal. The respondents have not stated that the orders are<\/p>\n
    false or fabricated or that the orders, which are produced
\n    before this Court, are not the ones by which they came to be
\n    appointed. Though it is mentioned in para 3 of the return filed
\n    on behalf of respondents No.1 in Writ Petition No.4095 of 1998<\/p>\n
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\n                                  7<\/span><\/p>\n
    and 4099 of 1998 that Annexure 1 was never supplied to the
\n    petitioners and that it was “prepared and falsified document”,<\/p>\n
    the contention cannot be accepted, since in the very same
\n    paragraph of the return, the respondents have accepted that
\n    the petitioners used to pay them salary of Rs.250\/- per month.\n<\/p>\n
    6.       Respondent Dhanraj in Writ Petition No.4097 of 1998
\n    has not at all filed any return and, therefore, he may not be<\/p>\n
    heard to say that the appointment order filed as Annexure 1 in
\n    his petition dated 3-8-1988 was not the one whereby he was<\/p>\n
    appointed as part-time Instructor in the trade of electrician, is
\n    false.\n<\/p>\n
    7.       In view of this, it is clear that the appointment of the
\n    respondents by the petitioner-Management for the first time<\/p>\n
    was on a part-time basis and was not a full time appointment.\n<\/p>\n
    Therefore, that appointment or the service rendered pursuant
\n    thereto cannot count for the purpose of considering whether
\n    the respondents had successfully completed their probation,<\/p>\n
    if they are taken to have been appointed on probation. In the
\n    appointment order from 1-7-1990 to 30-4-1991, the words
\n    “your appointment is on probation for a period of two years”\n<\/p>\n
    have not been scored out. It is not in dispute that after June
\n    1991, the respondents were not permitted to render services.\n<\/p>\n
    8.       According to the learned counsel for the petitioners,<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 14:42:22 :::<\/span>
\n                                  8<\/span><\/p>\n
    on 11-7-1991, an advertisement was issued for appointment of
\n    Instructors in the trades of fitter, wireman and carpenter. This<\/p>\n
    advertisement is at Annexure 6 of the petition. In pursuance
\n    to this advertisement, respondent Deepak Supsande in Writ
\n    Petition No.4099 of 1998 had applied. It is not shown that the<\/p>\n
    other   respondents   had    applied   in   pursuance           to     the
\n    advertisement.     The learned counsel for the petitioners
\n    submitted that in view of the application by respondent<\/p>\n
    Deepak Supsande, he cannot make out a grievance that he
\n    was entitled to confirmation in terms of his first appointment.\n<\/p>\n
    If the Management comes with a case that the first
\n    appointment was on a part-time basis and the second<\/p>\n
    appointment was for a fixed period of one year only, it too
\n    cannot make out a grievance about the respondents’ applying
\n    in pursuance of the advertisement.      It does not amount to<\/p>\n
    acquiescing in the position that his termination was valid.\n<\/p>\n
    9.       The learned counsel for the petitioners submitted
\n    that the School Tribunal was not justified in holding that the<\/p>\n
    respondents in the three petitions had been appointed on
\n    probation and, therefore, could not have been discontinued
\n    after the term of their appointment came to an end on<\/p>\n
    30-4-1991. He submitted that failure to score out the words to
\n    the effect that “the appointment was on a probation for a
\n    period of two years” was insignificant, particularly in the
\n    context of the fact that the specific period of ten months, i.e.<\/p>\n
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\n                                   9<\/span><\/p>\n
    from 1-7-1990 to 30-4-1991, had been spelt out in the very
\n    para 2 of the appointment order.\n<\/p>\n
    10.      The learned counsel for the respondents submitted
\n    that this failure to score out is significant and is not a mere<\/p>\n
    clerical error.   He submitted that it was open for the
\n    Management to score out the relevant words in order to give a
\n    clear signal to the employee as to the terms of his<\/p>\n
    appointment.      Failure to score out the words that the
\n    appointment was on a probation was justifiably understood by<\/p>\n
    the respondent-employee as appointment on probation.\n<\/p>\n
    11.      Much ado need not be made of the failure to score
\n    the relevant clause, particularly since such a clause would be
\n    ruled out in view of the specific period of appointment<\/p>\n
    mentioned in the same paragraph of the appointment order.\n<\/p>\n
    This would rule out that the appointment was on a probation
\n    for a period of two years.\n<\/p>\n
    12.      The learned counsel for the respondent-employees
\n    next submitted that the appointment of the respondents may
\n    be taken to have been on a probation for a period of two years<\/p>\n
    in view of the provisions of Section 5 of the Maharashtra
\n    Employees    of   Private    Schools   (Conditions      of     Service)
\n    Regulation Act, which make it obligatory for the Management
\n    to appointment an employee in a permanent vacancy on<\/p>\n
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\n                                      10<\/span><\/p>\n
    probation for a period of two years.\n<\/p>\n
    13.         Sub-Section (2) of Section 5 of M.E.P.S. Act reads as
\n    under :\n<\/p>\n
                “Every person appointed to fill a permanent vacancy
\n                except shikshan Sevak shall be on probation for a
\n                period of two years. Subject to the provisions of sub-\n<\/p><\/blockquote>\n
                sections (3) and (4), he shall, on completion of this
\n                probation period of two years, be deemed to have<\/p>\n
                been   confirmed:     Provided    that,    every        person
\n                appointed as shikshan sevak shall be on probation for<\/p>\n
                a period of three years.”\n<\/p><\/blockquote>\n
    14.         The learned counsel for the respondents submitted<\/p>\n
    that this provision has been considered by this Court in a<\/p>\n
    number of cases.\n<\/p>\n
    15.         In Hindi Vidya Bhavan, Mumbai and others v.\n<\/p>\n
    Presiding    Officer,   School    Tribunal,   Mumbai       and      others,
\n    reported at 2007(6) Mh.L.J. 563, the Court had held that if a
\n    person duly qualified is appointed by the Management and it<\/p>\n
    is not disputed that such a person has worked for two years on
\n    a permanent vacancy, he is deemed to have been confirmed
\n    as provided under Section 5(2) of the M.E.P.S. Act and non-
\n    approval of such post would not be an embargo on the<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:42:22 :::<\/span>
\n                                 11<\/span><\/p>\n
    Management to make him permanent.\n<\/p>\n
    16.      In Yogeshwar Vikas Sanstha and others v. Rajendra
\n    T. Shinde and another, reported at 2007(6) Mh.L.J. 698, this
\n    Court had held that when the employee is appointed against a<\/p>\n
    clear vacancy, though the letter of appointment mentions that
\n    the appointment is only for a specific period, the appointment
\n    must be considered as one on probation and, therefore,<\/p>\n
    upheld the order of reinstatement of the employee passed by
\n    the School Tribunal.ig\n<\/p>\n
    17.      In both these cases, the judgment of the Supreme<\/p>\n
    Court in Hindustan Education Society and another v. Sk.
\n    Kaleem Sk. Gulam Nagi and others, reported at (1997) 5 SCC
\n    152, had not been cited or noticed.\n<\/p>\n
    18.      In Matoshri Ramabai Ambedkar Vidyarthi Vasatigruh
\n    Trust and another v. Bharat D. Hambir and another, reported
\n    at 2009(2) Mh.L.J. 121, this Court has specifically considered<\/p>\n
    the provisions of Section 5 of the M.E.P.S. Act. It was observed
\n    in para 5 of the judgment as under :\n<\/p>\n
             “The School Tribunal has noted that in the present
\n             case, the first respondent was appointed after an
\n             advertisement was issued on 19th April, 2004 and
\n             interviews were held on 7th June, 2004.             The first<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 14:42:22 :::<\/span>
\n                              12<\/span><\/p>\n
     respondent was appointed with effect from 14th June,
\n     2004 as an Assistant Teacher. The first respondent<\/p>\n
     is a duly qualified teacher holding the B.A. And B.Ed.\n<\/p><\/blockquote>\n
     Qualifications.         The   appointment       of     the      first
\n     respondent was approved by the Social Welfare<\/p>\n
     Officer on a probationary basis. In fact, it was the
\n     contention of the petitioners that the work of the
\n     first respondent during the period of probation was<\/p>\n
     not satisfactory.       This aspect would be dealt with
\n     later.      However, it is evident that even the<\/p>\n
     petitioners accepted and treated the appointment of
\n     the first respondent as being on probation. The law<\/p>\n
     in this regard is clear. Section 5 of the Maharashtra
\n     Employees of Private Schools (Conditions of Service)
\n     Regulation Act, 1977 obligates every management of<\/p>\n
     a private school to fill up a permanent vacancy by<\/p>\n
     appointment of a duly qualified candidate to fill such
\n     vacancy and under sub-section (2) of section 5,
\n     every person appointed to fill a permanent vacancy<\/p>\n
     shall be on probation for a period of two years. Upon
\n     the      satisfactory    completion   of    the      period        of
\n     probation, there is a deeming fiction under the<\/p>\n
     statute by which an employee is deemed to have
\n     been confirmed.         A permanent vacancy has to be
\n     filled in by the appointment of a duly qualified
\n     candidate and every candidate appointed to fill a<\/p>\n
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\n                                 13<\/span><\/p>\n
              permanent     vacancy   has   to    be      appointed          on
\n              probation.”\n<\/p>\n
    19.      The learned counsel for the respondents, therefore,
\n    submitted that since the law obligates every Management to<\/p>\n
    fill up a permanent vacancy, every such person appointed to
\n    fill up such permanent vacancy shall be on probation for a
\n    period of two years. However, it has to be noted, as pointed<\/p>\n
    out by the learned counsel for the petitioner, that in that case
\n    as a fact it was accepted by the Management that the<\/p>\n
    appointment of the employee was on probation. Therefore, it
\n    cannot be said that the observations about obligation on the<\/p>\n
    Management is a result of adjudication.\n<\/p>\n
    20.      In Jagdamba Education Society, Nagpur v. Rajendra<\/p>\n
    s\/o Baburao Golhar and others, reported at 2009(2) Mh.L.J.\n<\/p>\n
    522, after considering the provisions of Section 5 of M.E.P.S.
\n    Act, this Court held that the appointment on year-to-year basis
\n    mentioning that the appointment was temporary, would not<\/p>\n
    make it to be of temporary nature, since the vacancy in
\n    question was permanent one when the first order of
\n    appointment was made. In para 9 of the judgment, the Court<\/p>\n
    had specifically observed that the person so appointed to fill in
\n    permanent vacancy shall be on probation for a period of two
\n    years.   The Court had also considered Rule 10 of the
\n    Maharashtra Employees of Private Schools (Conditions of<\/p>\n
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\n                                   14<\/span><\/p>\n
    Service) Rules as also the relevant provisions of Rule 9
\n    regarding appointment of staff.          In para 15, reliance was<\/p>\n
    placed on the judgment of the Division Bench of this Court in
\n    Diwaru s\/o Ramaji Madavi v. The Presiding Officer, School
\n    Tribunal and another, reported at 1991(1) CLR 272, where too<\/p>\n
    relying on the provisions of sub-section (2) of Section 5 of the
\n    M.E.P.S. Act, it was held that the person appointed to fill in
\n    permanent vacancy shall be on probation.\n<\/p>\n
    21.      In President, Mahila Mandal, Sinnar and another v.\n<\/p>\n
    Sunita Bansidhar Patole, reported at 2007(2) Mh.L.J. 105, the
\n    Court considered the provisions of Section 5 of the M.E.P.S. Act<\/p>\n
    and it may be useful to reproduce the observations in
\n    paragraphs 14 to 19 as under :\n<\/p>\n
             “14.      Once it is clear that the post wherein the<\/p>\n
             respondent    was     appointed        was      a     permanent
\n             vacancy, unless it is specifically disclosed by the
\n             Roster that the same was meant to be filled in by<\/p>\n
             appointment of a reserved category candidate, the
\n             provisions of section 5(1) of the M.E.P.S. Act are
\n             clearly attracted.    In the case in hand, it is not in<\/p>\n
             dispute that the post which was occupied by the
\n             respondent    was     a   permanent         vacancy.             The
\n             contention   that    it   was    for    reserved         category
\n             candidate is already found to be devoid of substance.\n<\/p><\/blockquote>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:42:23 :::<\/span>
\n                         15<\/span><\/p>\n
     Obviously, when the respondent was duly selected
\n     and appointed by issuing appropriate order of<\/p>\n
     appointment on 1st July, 1988, the same was to be
\n     considered as in terms of the provisions of law
\n     comprised under section 5(1).        Once there is an<\/p>\n
     appointment in accordance with the provisions of law
\n     comprised under section 5(1) and the candidate so
\n     appointed completes period of two years of service,<\/p>\n
     the provisions of section 5(2) are naturally attracted.\n<\/p>\n
     15.<\/p>\n
              It was, however, sought to be contended
\n     that provisions of section 5(2) would be attracted<\/p>\n
     only in case where the person is appointed on
\n     probation.   Every appointment made under section
\n     5(1) is deemed to be on probation till the person<\/p>\n
     appointed completes period of two years and that is<\/p>\n
     the intent behind sub-section (2) of section 5 of the
\n     said Act. It is pertinent to note that phraseology of
\n     sub-section (2) clearly discloses that every person<\/p>\n
     appointed to fill permanent vacancy all be on
\n     probation” for a period of two years and it further
\n     provides that subject to the provisions of sub-\n<\/p>\n
     sections (3) and (4) of section 5 “he shall on
\n     completion of this probation period of two years be
\n     deemed to have been confirmed.”\n<\/p>\n
                                       ::: Downloaded on – 09\/06\/2013 14:42:23 :::<\/span>
\n                         16<\/span><\/p>\n
     16.       Evidently, it provides for the deemed
\n     confirmation on completion of period of two years<\/p>\n
     without any requirement of specific confirmation
\n     order by the management in that regard. Being so,
\n     in the case in hand, once the respondent had<\/p>\n
     completed a period of two years from the date of
\n     appointment under letter dated 1st July, 1988 she
\n     ought to have been deemed to have been confirmed<\/p>\n
     and for the same reason her service could not have
\n     been terminated without following the procedure<\/p>\n
     prescribed by law for termination of service of a
\n     permanent      employee,    which    obviously         includes<\/p>\n
     issuance of notice, charge-sheet, enquiry etc. before
\n     passing an order of termination of services.                  The
\n     management admittedly has not done any such<\/p>\n
     things.\n<\/p>\n
     17.       The attention, however, on behalf of the
\n     petitioners was sought to be drawn to the orders of<\/p>\n
     appointment issued every year and, therefore, it is
\n     contended that no benefit under section 5(1) or (2)
\n     can be given to the respondent. The contention is<\/p>\n
     devoid    of   substance.      Merely        because           the
\n     management chooses to issue appointment orders
\n     every year, the appointment of the respondent ipso
\n     facto cannot become a temporary one.                          The<\/p>\n
                                         ::: Downloaded on – 09\/06\/2013 14:42:23 :::<\/span>
\n                        17<\/span><\/p>\n
     Management is bound by the provisions of law
\n     comprised under M.E.P.S. Act in relation to the<\/p>\n
     appointments of teachers. Once it is not in dispute
\n     that vacancy which was filled by the appointment of
\n     the respondent was a permanent vacancy, such such<\/p>\n
     appointment was after following the procedure
\n     prescribed for appointing a period in permanent
\n     vacancy irrespective of the appointment letters<\/p>\n
     being issued every year, the appointment of the
\n     respondent has to be construed as under section<\/p>\n
     5(1) of the said Act.          Being so, the so called
\n     appointment letters issued after 1st July, 1988 are to<\/p>\n
     be considered redundant and without any legal
\n     consequence. As already observed, it is also to be
\n     noted that the order of 1st July, 1988 nowhere<\/p>\n
     discloses appointment was on temporary basis or for<\/p>\n
     the period of one year.\n<\/p>\n
     18.       The decision of the Apex Court in Bhartiya<\/p>\n
     Gramin Punarrachana v. Vijay Kumar’s case (supra)
\n     is of no help to the petitioners wherein the Apex
\n     Court while considering the scope of section 5(2) had<\/p>\n
     held that :–\n<\/p>\n
               “A plain reading of section 5(2) of the
\n               Maharashtra Employees of Private Schools
\n               (Conditions     of   Service)   Regulation           Act<\/p>\n
                                         ::: Downloaded on – 09\/06\/2013 14:42:23 :::<\/span>
\n                                   18<\/span><\/p>\n
                        would show that it applies to a person who
\n                        is put on probation consequent upon his<\/p>\n
                        appointment in a permanent vacancy.”\n<\/p><\/blockquote>\n
               19.      Referring to the above quoted observation,<\/p>\n
               it was sought to be contended that the appointment
\n               has to be on probation and only thereupon the
\n               provisions of sub-section (2) of section 5 would be<\/p>\n
               attracted.   As already observed, there is nothing
\n               called “appointment on probation”.\n<\/p><\/blockquote>\n
                             ig                                Once the
\n               appointment is made in terms of section 5(1) it takes
\n               colour of appointment on probation, by virtue of the<\/p>\n
               provisions comprised under sub-section (2) and that
\n               is what has been held by the Apex Court in the
\n               above decision.”\n<\/p><\/blockquote>\n
    However, it may also be noted that even in this judgment, the
\n    judgment of the Supreme Court in Hindustan Education
\n    Society had not been noticed.\n<\/p>\n
    22.        The learned counsel for the petitioners submitted
\n    that sub-section (2) of Section 5 of the M.E.P.S. Act had been<\/p>\n
    considered by the Supreme Court in Hindustan Education
\n    Society.   In that case, the appointment was for 11 months
\n    against a clear vacancy. After considering the provisions of
\n    Section 5 of the M.E.P.S. Act, the Court held that the<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 14:42:23 :::<\/span>
\n                                   19<\/span><\/p>\n
    appointment could not be considered as permanent and,
\n    therefore, allowed the appeal by the Management.\n<\/p>\n
    23.      The learned counsel for the petitioners also relied on
\n    a judgment of the Supreme Court in Bharatiya Gramin<\/p>\n
    Punarrachana Sanstha v. Vijay Kumar and others, reported at
\n    2003(1) Mh.L.J. 563, where these provisions were considered.
\n    In that case, the employee concerned had applied in response<\/p>\n
    to an advertisement and was selected and appointed by the
\n    Management on 22-6-1996 for a period of two years from<\/p>\n
    24-6-1996 to 23-6-1998.       The Deputy Director of Education
\n    approved the appointment for academic year 1996-97 only.\n<\/p>\n
    Since   no   approval   for    academic   year      1997-98          was
\n    forthcoming, the services of the employee were terminated on
\n    17-9-1997.   Upon challenge by the employee, the School<\/p>\n
    Tribunal directed reinstatement of the employee with 75%<\/p>\n
    back wages, which order was maintained by the High Court.
\n    In that case, the employee was appointed against a vacancy
\n    meant for Scheduled Tribe candidate, though he did not<\/p>\n
    belong to Scheduled Tribe. However, the order of the High
\n    Court was not criticized on this ground. The Management had
\n    contended before the Supreme Court that the appointment<\/p>\n
    was for a fixed period of two years. It was argued before the
\n    Supreme Court on behalf of the employee that after the period
\n    of two years, the employee would be deemed to have been
\n    confirmed in view of the provisions of sub-section (2) of<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 14:42:23 :::<\/span>
\n                                 20<\/span><\/p>\n
    Section 5 of the M.E.P.S. Act. Even after having noticed these
\n    provisions, the   Supreme Court      did   not    hold      that      the<\/p>\n
    appointment ought to have been made on probation for a
\n    period of two years or that on completion of such period, the
\n    employee was entitled to confirmation.     On the other hand,<\/p>\n
    the Supreme Court allowed the appeal by confining the
\n    entitlement of the employee to the period till 23-6-1998 only.\n<\/p>\n
    24.      The learned counsel for the petitioner further
\n    submitted that the provisions of Section 5 of the M.E.P.S. Act<\/p>\n
    came up for consideration before a Division Bench of this
\n    Court in Priyadarshini Education Trust and others v. Ratis<\/p>\n
    (Rafia) Bano d\/o Abdul Rasheed and others, reported at
\n    2007(6) Myh.L.J. 667. In that case, the concerned Teacher was
\n    appointed on 15-6-1981 for one academic year on a<\/p>\n
    temporary basis. This appointment was continued from time<\/p>\n
    to time up to 17-2-1990. She was again appointed in 1992-93
\n    and 1993-94. She claimed to have been appointed in 1992 on
\n    probation for a period of two years. In 2004, an advertisement<\/p>\n
    was issued and after selection, other Teachers were appointed
\n    to various posts. The respondent Teacher had not applied in
\n    response to the advertisement and, therefore, there was no<\/p>\n
    question of her being appointed. She approached the School
\n    Tribunal claiming that she had been orally terminated on
\n    13-6-1994.    The Tribunal dismissed her appeal, which
\n    dismissal was challenged by preferring writ petition before the<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 14:42:23 :::<\/span>
\n                                   21<\/span><\/p>\n
    High Court, which was allowed by a learned Single Judge. The
\n    decision of a learned Single Judge was challenged by the<\/p>\n
    Management       by   preferring   the   Letters    Patent       Appeal.
\n    In para 7 of the judgment, the Division Bench referred to the
\n    judgment of the Supreme Court in Hindustan Education<\/p>\n
    Society.   In para 10, the Court noted the provisions of sub-
\n    sections (1) and (2) of Section 5 of the M.E.P.S. Act.                 The
\n    observations in para 11 of the judgment in this regard may be<\/p>\n
    usefully reproduced as under :\n<\/p>\n
               “11. … In this context, we may also refer to the text
\n               of sub-section (2) of section 5, which is already re-\n<\/p><\/blockquote>\n
               produced hereinabove.         From the opening part
\n               “every person appointed to till in permanent vacancy
\n               shall be on probation for a period of two years….”, it<\/p>\n
               is evident that once a person is selected in the<\/p>\n
               manner     prescribed   and    duly     appointed,           the
\n               Management or the School Committee has no option.
\n               Such a person must be appointed on probation. If<\/p>\n
               there is a permanent vacancy and if a person duly
\n               qualified is selected in the manner prescribed and
\n               then duly appointed, the Management has no choice<\/p>\n
               or option to appoint him for a limited period such as
\n               one academic year or shorter than that. …”\n<\/p><\/blockquote>\n
    In para 12 of the judgment, after considering several<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 14:42:23 :::<\/span>
\n                                   22<\/span><\/p>\n
    judgments,      the    Division    Bench      drew         the       following
\n    conclusions :\n<\/p>\n
             “We draw following conclusions ;\n<\/p><\/blockquote>\n
             (i)          “duly appointed, in the manner prescribed”
\n             would be an appointment of a person who is eligible
\n             (qualified for the post) for appointment, who is<\/p>\n
             selected     by   due     process    of     selection         i.e.    by
\n             competition   ig  amongst    all    eligible       and       desirous
\n             candidates, and who is appointed on a permanent
\n             vacant post. In other words, inviting applications, as<\/p>\n
             also holding of screening tests, enabling all eligible
\n             and desirous candidates to compete for selection and
\n             appointment, is a must.\n<\/p><\/blockquote>\n
             (ii)         Once an eligible candidate (duly qualified
\n             as required) is selected by selection process as
\n             above, for filling in a permanent vacancy, there is no<\/p>\n
             option for the management and it is obligatory on it
\n             to appoint such person on probation for a period of
\n             two years. It is neither open for the management to<\/p>\n
             appoint him for one academic year or any period
\n             shorter than two years probation period, nor it is
\n             open for Education Officer to grant approval for such
\n             shorter period. (in fact, in view of requirement as in<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 14:42:23 :::<\/span>
\n                                      23<\/span><\/p>\n
              clause (i) above, the process of grant of approval by
\n              Education Officer should begin with examination of<\/p>\n
              selection process and its validity.\n<\/p><\/blockquote>\n
              (iii)      The candidate thus selected with due<\/p>\n
              process and appointed on probation shall enjoy
\n              status of deemed permanency on completion of two
\n              years, unless extension of probation is informed, or<\/p>\n
              termination is ordered.\n<\/p><\/blockquote>\n
              (iv)<\/p>\n
                         The appointment of a person not belonging
\n              to reserved category, in a post reserved for a<\/p>\n
              particular category, because the candidate of that
\n              category    is   not    available,   shall    be      absolutely
\n              temporary and on an year to year basis, governed by<\/p>\n
              sub-rule (9) of Rule 9, although in a permanent<\/p>\n
              vacancy.”\n<\/p><\/blockquote>\n
    The Court then allowed the Letters Patent Appeal, set aside<\/p>\n
    the judgment of the learned Single Judge and dismissed the
\n    writ petition.\n<\/p>\n
    25.       The learned counsel for the petitioners submitted
\n    that the judgments on which the learned counsel for the
\n    respondents placed reliance, had not taken into consideration
\n    the judgment of the Supreme Court in Hindustan Education<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:42:23 :::<\/span>
\n                                 24<\/span><\/p>\n
    Society.   He submitted that in Hindustan Education Society,
\n    though there was an appointment against a clear vacancy, the<\/p>\n
    Supreme Court did not hold that such appointment could have
\n    been only on probation, or, in other words, did not interpret
\n    the provisions of sub-section (2) of Section 5 of the M.E.P.S.\n<\/p>\n
    Act to create an obligation on the Management to appoint an
\n    employee only on probation. According to the learned counsel
\n    for the petitioners, it would be impermissible to read any such<\/p>\n
    requirement. The order of appointment would have to be read
\n    as it is and since in these petitions, the appointments were for<\/p>\n
    a fixed period and on a purely temporary basis, it would be
\n    impermissible to conclude that the appointments were on<\/p>\n
    probation or that, therefore, the respondents were entitled to
\n    confirmation.\n<\/p>\n
    26.        The learned AGP submitted that it is pertinent to<\/p>\n
    note that in Hindustan Education Society, it was specifically
\n    noted by the Supreme Court that the appointment order was
\n    in a clear vacancy.   He submitted that in spite of this, the<\/p>\n
    Court held that the appointment was not against a permanent
\n    post and after reproducing the provisions of Section 5 of
\n    M.E.P.S. Act, restricted the appointment to the terms of<\/p>\n
    appointment order. He pointed out that even in the case at
\n    hand, the appointment order clearly mentions that the
\n    appointment was purely temporary. He, therefore, submitted
\n    that a clear vacancy does not necessarily imply a permanent<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 14:42:23 :::<\/span>
\n                                     25<\/span><\/p>\n
    vacancy. He submitted that possibly the Apex Court was alive
\n    to this distinction and so, it did not hold that the appointment<\/p>\n
    order had to be interpreted in terms of sub-section (2) of
\n    Section 5 of M.E.P.S. Act.      According to the learned AGP, a
\n    vacancy in a School would not become a permanent vacancy<\/p>\n
    unless the institution has stabilized to a particular strength of
\n    students over a number of years justifying continuation of
\n    vacancy indefinitely, when it would translate itself into a<\/p>\n
    permanent vacancy. Therefore, according to the learned AGP,
\n    the appointment of the petitioner could not be taken as one on<\/p>\n
    probation.    The learned AGP, therefore, supported the
\n    contention of the petitioner Management that the School<\/p>\n
    Tribunal could not have held in favour of the respondents.\n<\/p>\n
    27.      The contention of the learned AGP that a clear<\/p>\n
    vacancy may not be equated to a permanent vacancy is well-\n<\/p>\n
    founded and has to be accepted. In view of the fact that the
\n    appointment orders clearly showed that the appointments
\n    were purely temporary for a period of one year at a time, in<\/p>\n
    view of the judgment in Hindustan Education Society, it would
\n    not be permissible to hold that the appointments were on
\n    probation    and   to   grant    consequential   benefits        to     the<\/p>\n
    respondents, since it is not shown that vacancies were
\n    permanent. Since the appointments themselves came to an
\n    end after the period mentioned therein expired, there was no
\n    question of the respondents being entitled to continue beyond<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 14:42:23 :::<\/span>
\n                                26<\/span><\/p>\n
    those dates.\n<\/p>\n
    28.      In view of this, the petitions are allowed.               The
\n    impugned orders passed by the Presiding Officer, School
\n    Tribunal, are quashed and set aside.\n<\/p>\n
                                           JUDGE.\n<\/p>\n
     Pdl.\n<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 14:42:23 :::<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Maharashtra Addhyan Mandir vs Deepak on 22 June, 2009 Bench: R. C. Chavan 1 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-231736","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nMaharashtra Addhyan Mandir vs Deepak on 22 June, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/maharashtra-addhyan-mandir-vs-deepak-on-22-june-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Maharashtra Addhyan Mandir vs Deepak on 22 June, 2009 - 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