{"id":92170,"date":"2009-04-30T00:00:00","date_gmt":"2009-04-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ku-jaimala-bhaurao-ramteke-vs-presiding-officer-on-30-april-2009"},"modified":"2016-08-07T18:20:24","modified_gmt":"2016-08-07T12:50:24","slug":"ku-jaimala-bhaurao-ramteke-vs-presiding-officer-on-30-april-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ku-jaimala-bhaurao-ramteke-vs-presiding-officer-on-30-april-2009","title":{"rendered":"Ku. Jaimala Bhaurao Ramteke vs Presiding Officer on 30 April, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Ku. Jaimala Bhaurao Ramteke vs Presiding Officer on 30 April, 2009<\/div>\n
Bench: S.R. Dongaonkar<\/div>\n
                                     1\n\n           IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                     NAGPUR BENCH, NAGPUR\n\n\n\n\n                                                                             \n                    WRIT PETITION NO. 5413\/2008\n\n\n\n\n                                                     \n      Ku. Jaimala Bhaurao Ramteke, \n      aged about 42 years, Occupation -\n      Assistant Teacher, Saraswati Purva\n      Madhyamik School, Koka (Jungle),\n\n\n\n\n                                                    \n      Tahsil and District : Bhandara,\n      R\/o. Koka, Distt. Bhandara\n                                                  ...PETITIONER\n\n\n\n\n                                           \n                                   ...versus...\n\n      1.\n                            \n           Presiding Officer, School Tribunal,\n           Nagpur.\n                           \n      2.   Preeti Shikshan Sanstha, Bhandara,\n           through its Secretary - Shri B.D.\n           Bhaladhar, resident of Bhandara,\n           Tahsil and District : Bhandara.\n         \n\n\n      3.   The Education Officer (Primary),\n      \n\n\n\n           Zilla Parishad, Bhandara,\n\n      4.   The Headmaster, Saraswati Purva\n           Madhyamik School, Koka (Jungle),\n\n\n\n\n\n           Tah. & Distt. Bhandara                      ..RESPONDENTS.\n\n    ======================================\n      Shri A.S.Mardikar,  Adv. for the petitioner,\n      Shri A.S. Sonare, APP, for Respondent Nos.1 & 3\n      Shri A.Z.Jibhkate, Adv. for Respondent Nos. 2 & 4\n\n\n\n\n\n    ======================================\n\n\n      CORAM :  S.R.DONGAONKAR, J.\n                                 th\n       JUDGMENT RESEVED ON  :  4     APRIL, 2009.\n                                                 \n                                        th\n       JUDGMENT PRONOUNCED ON :  30     APRIL, 2009\n                                                   \n\n\n\n\n                                                     ::: Downloaded on - 09\/06\/2013 14:34:02 :::\n                                            2\n\n\n    JUDGMENT\n<\/pre>\n
    1.           Shri A.S.Mardikar,   Adv. for the petitioner, Shri Sonare, <\/p>\n
    APP,   for   Respondent   Nos.1   &   3   and     Shri   A.Z.Jibhkate,   Adv.   for <\/p>\n
    Respondent Nos.  2 & 4<\/span><\/p>\n
                 Rule.\n<\/p>\n
                 Made   returnable   forthwith.     Heard   finally   with   the <\/p>\n
    consent of the parties.\n<\/p>\n
    2.           The petitioner herein seeks to challenge the order passed <\/p>\n
    by the School Tribunal, Nagpur, in Appeal No. STC\/26\/01, dated <\/p>\n
    10th  December, 2008, by which her appeal under Section 9 of the <\/p>\n
    M.E.P.S. Act was dismissed.\n<\/p>\n
    3.           The   facts   leading   to   this   petition   can   be   briefly   stated <\/p>\n
    thus<\/p>\n
                 The petitioner was working as a teacher in the school run <\/p>\n
    by   Respondent   Nos.   2   &   4.   Respondent   No.2   is   a   registered <\/p>\n
    Education Society.  Respondent No.2 runs respondent no. 4 School.\n<\/p>\n
    It   is   contended   that   same   is   run   on   “grant-in-aid”   basis.     The <\/p>\n
    petitioner was appointed as an Assistant Teacher by Respondent No. <\/p>\n
    2 as she was qualified teacher. She was selected and appointed and <\/p>\n
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\n                                           3<\/span><\/p>\n
    was directed to join her duties w.e.f. 1.12.1997 initially.  Her name <\/p>\n
    was   incorporated   in   the   muster-roll.     On   1.6.1998,   she   was <\/p>\n
    appointed on probation w.e.f. 1.6.1998 to 30.5.2000.  The proposal <\/p>\n
    of   such   appointment   was   submitted   to   the   Education   Officer-\n<\/p>\n
    Respondent no.3.  It is alleged that she was appointed on probation <\/p>\n
    for a period of two years as stated in her appointment order.  It is <\/p>\n
    further   contended   that   she   had   unblemished   service   throughout.\n<\/p>\n
    Her   work   and   behaviour   was   good.   There   were   no   adverse <\/p>\n
    communications   issued   by   her   during   her   service.     Another <\/p>\n
    appointment   order   was   issued   by   the   respondent   management <\/p>\n
    stating that her services are continued from 5.7.2000 to 30.4.2001.\n<\/p>\n
    It   is   alleged   that   as   the   petitioner   had   completed   her   probation <\/p>\n
    period satisfactorily on 30.5.2000,  her services become permanent <\/p>\n
    and she had acquired a status of “permanent employee”. Therefore, <\/p>\n
    according to her, her services could not be terminated by giving one <\/p>\n
    month notice. According to the petitioner, her services were liable <\/p>\n
    for termination only after due inquiry and by following mandatory <\/p>\n
    provisions of Rule 33 to 37.  Therefore,the termination order issued <\/p>\n
    to  the   petitioner,  dated   28.03.2001  having   effect  from   30.4.2001 <\/p>\n
    was   illegal   and   bad   in   law.   She,   therefore.   challenged   this <\/p>\n
    termination order in her appeal under Section 9 of the M.E.P.S. Act.\n<\/p>\n
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\n                                            4<\/span><\/p>\n
    4.           The   Education   Officer   –   respondent   no.2   herein,   filed <\/p>\n
    reply   in   the   said   appeal.     It   was   not   denied   that   the   respondent <\/p>\n
    management had submitted the proposal to the Education Officer <\/p>\n
    for approval to the appointment of the petitioner.  The said approval <\/p>\n
    was granted on 1.7.1998 for two years of probation.  According to <\/p>\n
    the Education Officer, she was senior-most teacher and therefore, as <\/p>\n
    she had completed her probation period and there was no inquiry <\/p>\n
    pending   against   her,   her   termination,     as   was   done   by   the <\/p>\n
    respondent   management;     was   illegal.     Therefore,   the   Education <\/p>\n
    Officer (Primary), Zilla Parishad, Bhandara, supported the case of <\/p>\n
    the   petitioner   and   claimed   that   he   is   not   responsible   for   the <\/p>\n
    termination of the petitioner.\n<\/p>\n
    5.           Respondent nos. 2 & 4 herein, filed a reply in the said <\/p>\n
    appeal proceedings and admitted that the said school is run by the <\/p>\n
    respondent Society. It was contended that recognition to the said <\/p>\n
    school was granted by the Education Department on year to year <\/p>\n
    basis.   As at the relevant time, the recognition to the school was <\/p>\n
    granted on year to year basis, there was no question of appointment <\/p>\n
    of any teacher for two years, even on probation. According to these <\/p>\n
    respondents, Education Officer first time granted recognition with <\/p>\n
    “grant-in-aid”   on   1.7.1998.     It   was   granted   only   till   30.6.1999.\n<\/p>\n
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\n                                          5<\/span><\/p>\n
    Thereafter again it was granted from 1.7.1999 to 30.6.2000.   Last <\/p>\n
    order   regarding   recognition   was   for   the   period   1.7.2000   to <\/p>\n
    30.6.2001.   Further order of recognition for the session 2001-2002 <\/p>\n
    was not received (at the time of filing of that reply) and therefore, <\/p>\n
    the petitioner could not get a status of “permanent employee”.   It <\/p>\n
    was also contended that termination order issued to the petitioner <\/p>\n
    was issued after following the due procedure and by due compliance <\/p>\n
    of   the   mandatory   provisions   of   the   Act   and   Rules.   It   was   also <\/p>\n
    submitted that such recognition was granted on year to year basis, <\/p>\n
    so the petitioner could not have been appointed for more term than <\/p>\n
    the   term   of   recognition.     According   to   these   respondents,   the <\/p>\n
    petitioner could not get the status of “permanent employee”, except <\/p>\n
    otherwise  than  proper  appointment on  probation  for  the  relevant <\/p>\n
    period   as   required   under   Section   5(2)   of   the   M.E.P.S.   Act.\n<\/p>\n
    Therefore,   according   to   these   respondents,the   petitioner   was <\/p>\n
    absolutely   a   temporary   employee   and   her   services   could   rightly <\/p>\n
    terminated as per the order that was issued.\n<\/p>\n
    6.           The   learned   Presiding   Officer,   School   Tribunal   framed <\/p>\n
    necessary points for determination and gave finding that the school <\/p>\n
    was recognized under the M.E.P.S. Act.  He, however, found that the <\/p>\n
    appointment of the petitioner was not properly made in terms of <\/p>\n
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\n                                            6<\/span><\/p>\n
    Section 5 of the M.E.P.S. Act and relevant M.E.P.S. Rules. Therefore, <\/p>\n
    he found that the termination order issued to the petitioner dated <\/p>\n
    28.3.2001 impugned in the appeal was not illegal and improper.  As <\/p>\n
    such, he dismissed the appeal of the petitioner.\n<\/p>\n
    7.            The petitioner challenges that order int his petition under <\/p>\n
    Articles 226 & 227 of the Constitution of India.\n<\/p>\n
    8.<\/p>\n
                  Learned   counsel   for   the   petitioner   Shri   Mardikar   has <\/p>\n
    submitted  that  the   first  appointment  of   the  petitioner   was   in  the <\/p>\n
    year 1997.   Her initial appointment was till 30.4.1998.   She was <\/p>\n
    again   appointed   for   the   period   from   1.6.1998   to   30.5.2000,   this <\/p>\n
    time;  on probation for two years. Her appointment and service was <\/p>\n
    continued even after 30.5.2000 until further orders. She was given <\/p>\n
    some financial powers as well as a charge of headmistress.  She was, <\/p>\n
    however,   terminated   by   the   notice   dated   28.3.2001,   w.e.f.\n<\/p>\n
    30.4.2001,   the   order   which   was   challenged   before   the   School <\/p>\n
    tribunal.  She was protected by an interim order thereafter. The said <\/p>\n
    order was continued till 10.12.2008 i.e. The disposal of the appeal <\/p>\n
    of   the   petitioner.     On   filing   the   petition,   the   ‘status   quo’     was <\/p>\n
    ordered by this Court and order was continued for quite some time.\n<\/p>\n
    According to the petitioner, however, later on she was not allowed <\/p>\n
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\n                                            7<\/span><\/p>\n
    to continue in service.  In this context, it is necessary to note;  at this <\/p>\n
    stage,  the   respondents  had  submitted   that  she   was  relieved  from <\/p>\n
    service on 11.12.2008,  itself,  at 11 a.m. i.e immediately  after  the <\/p>\n
    order of the School Tribunal, and before this Court had passed an <\/p>\n
    order of status quo.   The petitioner prayed to rectify the things by <\/p>\n
    this   Court.     It   was   ordered   by   this   Court   on   15.1.2009   that   this <\/p>\n
    aspect shall be considered at the time of final orders in the petition.\n<\/p>\n
    To continue with the submissions made by the learned counsel for <\/p>\n
    the   petitioner,   it   can   be   stated   that,   according   to   the   learned <\/p>\n
    counsel, the termination of the petitioner was totally illegal as she <\/p>\n
    was appointed on probation and after satisfactory completion of the <\/p>\n
    probation   period,   she   could   not   have   been   terminated   without <\/p>\n
    proper   inquiry   and   by   following   due   procedure   laid   down   under <\/p>\n
    M.E.P.S. Act as well as Rules.   The management\/respondent cannot <\/p>\n
    go back and say that the appointment of the petitioner on probation <\/p>\n
    could not have been  made as such and therefore, the management <\/p>\n
    could   not   take   advantage   of   its   own   wrong.     According   to   the <\/p>\n
    learned   counsel   for   the   petitioner,   as   the   petitioner   was   granted <\/p>\n
    financial and administrative powers and also she was appointed as <\/p>\n
    headmistress   for   quite   some   time,   it   was   clear   that   she   had <\/p>\n
    continued   in   service   on   satisfactory   completion   of   the   probation <\/p>\n
    period and therefore, her services could not have been dispensed <\/p>\n
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\n                                          8<\/span><\/p>\n
    with;  as done in this case.  He has relied on certain authorities to <\/p>\n
    contend   that   the   services   of   the   petitioner   could   not   have   been <\/p>\n
    terminated   except   by   following   due   procedure,   once   she   had <\/p>\n
    attained the status of permanent employee after completion of the <\/p>\n
    period  of   probation.  The  satisfactory  completion   of  the  probation <\/p>\n
    period  could  be   inferred  from  conferring   of   financial  powers  and <\/p>\n
    charge of headmistress on her.  According to him, the appointment <\/p>\n
    of the petitioner was properly made by following due procedure and <\/p>\n
    therefore, recognition of the school on year to year basis will not <\/p>\n
    make   any   difference.   As   such,   according   to   him,   the   order   of <\/p>\n
    termination was totally illegal.  The School tribunal should have not <\/p>\n
    dismissed the appeal of the petitioner.  Therefore, according to him, <\/p>\n
    the judgment impugned in this petition is liable to be set aside and <\/p>\n
    appeal   of   petitioner   should   be   allowed.     I   would   discuss   the <\/p>\n
    authorities   referred   by   him   at   the   appropriate   place   during   the <\/p>\n
    course of this judgment.\n<\/p>\n
    9.           Learned AGP Shri Sonare for the Respondent No. 1 & 3 –\n<\/p>\n
    Education   Officer   has   contended   that   the   Education   Officer   is <\/p>\n
    supporting   the   case   of   the   petitioner   inasmuch   as   approval   was <\/p>\n
    granted   by   the   Education   Officer   for   the   appointment   of   the <\/p>\n
    petitioner   on   probation.     She   had   successfully   completed   the <\/p>\n
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\n                                         9<\/span><\/p>\n
    probation   period   and   therefore,   she   had   acquired   a   status   of <\/p>\n
    permanent employee.  Thus, according to him, the petition need to <\/p>\n
    be allowed by setting aside the impugned order.\n<\/p>\n
    10.         Per  contra,  the   learned   counsel   Shri   Jibhkate,    for  the <\/p>\n
    respondent   Management   &   School   has   submitted   that   once   the <\/p>\n
    appointment   is   not   valid   and   in   accordance   with   rules   under <\/p>\n
    M.E.P.S.   Act   &   relevant   Rules,   the   appointment   can   not   be <\/p>\n
    considered as valid appointment in any case and the employee can <\/p>\n
    not  get  advantage   of  such  wrong\/irregular   appointment.    In  that <\/p>\n
    case, the management can take a stand that appointment is not at <\/p>\n
    all valid and in accordance with the Rules  & therefore, it does not <\/p>\n
    confer   any   status   of   permanent   employee   on   the   concerned <\/p>\n
    employee.  And in the present case, the petitioner was not appointed <\/p>\n
    on the  post of teacher on probation  in pursuance to the relevant <\/p>\n
    provisions   of   law and the   Rules   and  therefore, when  the   parties, <\/p>\n
    including the petitioner have acted contrary to the rules,  the illegal <\/p>\n
    appointment can not be regularized by the in action on the part of <\/p>\n
    the   management   or   even   because   of   approval   granted   by   the <\/p>\n
    Education Officer.   He has also relied on certain authorities in this <\/p>\n
    behalf.   According to him, the management is not estopped from <\/p>\n
    contending that the appointment of the petitioner was not legal.  In <\/p>\n
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\n                                          10<\/span><\/p>\n
    such   illegal   appointments,   the   management   can   disown   their <\/p>\n
    liabilities.     As   regards   issue   of   regular   and   proper   and   thorough <\/p>\n
    following   mandatory   procedure   appointment   of   the   petitioner, <\/p>\n
    learned counsel has submitted that this issue was not at all raised <\/p>\n
    before the School Tribunal and the petitioner now can not raise a <\/p>\n
    issue   that   advertisement   was   given,   applications   were   called   and <\/p>\n
    after due selection procedure, she was appointed on the permanent <\/p>\n
    post of teacher on probation. Therefore, according to him, once the <\/p>\n
    appointment is held to be not in consonance with Section 5 of the <\/p>\n
    M.E.P.S. Act & relevant Rules,   the petitioner can not be heard of <\/p>\n
    saying that her appointment should be treated as an appointment on <\/p>\n
    probation in the vacancy of permanent post.  He has relied on some <\/p>\n
    authorities in this regard, which I would discuss in the course of <\/p>\n
    judgment.\n<\/p>\n
    11.          In order to appreciate the controversy in the matter, two <\/p>\n
    authorities of this Court need to be referred as to the dealing with <\/p>\n
    preliminary  issues   to be  considered by  the   School  Tribunal  while <\/p>\n
    deciding   the   appeals   under   Section   9   of   the   M.E.P.S.   Act.     The <\/p>\n
    important decision of this Court in this regard is 1997 (3) Mh.L.J.\n<\/p>\n
    697;     Anna   Manikrao   Pethe     vs.     Presiding   Officer,   School <\/p>\n
    Tribunal,   Amravati   and   Aurangabad   Division,   Amravati   and<\/a> <\/p>\n
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\n                                          11<\/span><\/p>\n
    others,  wherein it was held, <\/p>\n
            “when   applications   under   section   9   of   the  <\/p>\n
            Maharashtra   Employees   of   Private   Schools
\n            (Conditions of Service) Regulation Act, 1977, are filed  <\/p>\n
            before   the   School   Tribunals   by   the   teachers
\n            challenging any act of termination on the part of the
\n            management, it will be necessary for the Tribunal to
\n            frame   and   decide   three   preliminary   issues,   viz.,
\n            whether the school was a recognised school as defined <\/p>\n
            under the M.E.P.S. Act;   whether the appointment of
\n            the concerned teacher was made as per section 5 of the
\n            M.E.P.S. Act and the Rules thereunder; and whether
\n            such   an   appointment   has   been   approved   by   the  <\/p>\n
            Education Officer in pursuance of the provisions of the
\n            Act as well as the Rules framed thereunder including  <\/p>\n
            the Government Resolutions issued from time to time
\n            regarding reservations etc.   These preliminary points
\n            are   required   to   be   framed   and   decided   before   the  <\/p>\n
            appeal proceeds on merits and even if such points are
\n            not raised by any of the parties to the appeal, it would
\n            be proper on the part of the tribunal to frame such
\n            issues   suo   motu   before   examining   the   merits   of   the  <\/p>\n
            case.   In case the findings to any of the preliminary
\n            issues are in the negative, the appeal must fail then  <\/p>\n
            and   there   itself,   so   far   as   the   relief   of
\n            reinstatement\/continuation in service is concerned.\n<\/p>\n
    It is mandatory on the part of the School Tribunal to consider these <\/p>\n
    3 preliminary  issues  before  deciding  the  matter  on  merits  i.e. (I) <\/p>\n
    whether   the   school   was   recognized   school   as   defined   under   the <\/p>\n
    M.E.P.S. act; (II) whether the appointment of the concerned teacher <\/p>\n
    was made as per Section 5 of the M.E.P.S. act and Rules thereof & <\/p>\n
    (III) Whether such appointment has been proved by the Education <\/p>\n
    Officer in pursuance of the provisions of the Act as well as Rules <\/p>\n
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\n                                          12<\/span><\/p>\n
    framed   thereunder   including   the   G.R.   issued   from   time   to   time <\/p>\n
    regarding reservation etc.”\n<\/p>\n
    I have pointed out above, what the School Tribunal has held by the <\/p>\n
    impugned judgment.\n<\/p>\n
    12.          This judgment was considered by the Full Bench of this <\/p>\n
    Court again in  2007 (1) Mh.L.J. 597; St. Ulai High School and <\/p>\n
    another vs. Devendraprasad Jagannath Singh and another.  The <\/p>\n
    effect of approval by the Education Officer to the appointments of <\/p>\n
    the   teacher   was   considered   to   be   an   issue   which   need   not   be <\/p>\n
    considered by the Court, as the grant of approval by the Eduction <\/p>\n
    Officer was not held to be condition precedent to a valid order of <\/p>\n
    appointment.  It is obvious, therefore, that the School Tribunal has <\/p>\n
    to consider remaining two issues as preliminary issues as a condition <\/p>\n
    precedent before going into the merits of the appeal under Section 9 <\/p>\n
    of the M.E.P.S. Act.\n<\/p>\n
    13.          In   the   present   case,   it   is   not   disputed,   rather   is <\/p>\n
    established   that   the   School   was   recognized   only   on   year   to   year <\/p>\n
    basis during the relevant period by the Government. Therefore, the <\/p>\n
    appointment   of   the   teachers   could   have  been   approved   by   the <\/p>\n
    Education  Department  only  for  the   particular   years   during   which <\/p>\n
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\n                                            13<\/span><\/p>\n
    there was valid recognition.  This aspect assumes importance in the <\/p>\n
    present case.\n<\/p>\n
    14.           At this stage, I would like to refer the authorities relied <\/p>\n
    by the learned counsel for the petitioner.\n<\/p>\n
          He has relied on the unreported judgment of this Court in Writ <\/p>\n
    Petition   No.   5774\/2007   Shikshan   Prasarak   Mandal     vs.   Ku.\n<\/p>\n
    Varsha Pundlikrao Mandhare and others,   particularly following <\/p>\n
    observations;\n<\/p>\n
              “Having considered the rival submissions and having  <\/p>\n
              perused the record, I find no merits in the petition.
\n              The approval   to the services of   the  respondent  no.1
\n              was   granted   by   the   Education   Officer   which   has
\n              become final in the absence of any challenge by the <\/p>\n
              petitioner.  Mr. Naik is right in contending that there
\n              is presumption that the approval has been granted by  <\/p>\n
              the Education Officer by following the Rules. Hence, I
\n              find no force in the contention of Mr. Khapre that the
\n              appointment of respondent no.1 was not in terms of
\n              the Rules. The Respondent no.1 having been appointed <\/p>\n
              on   probation   by   following   the   Rules   the   petitioner
\n              could   not   have   been   terminated   her   services   on   the
\n              ground that she was appointed to the post reserved for
\n              SC, ST or NT candidate, and, therefore, she was not
\n              eligible to be appointed.”\n<\/p><\/blockquote>\n
    He has also relied on the judgment of this Court reported in  2009 <\/p>\n
    (1)   Mh.L.J.   796;   Nita   Ramesh   Danane     vs.   Dombivali   Mitra <\/p>\n
    Mandal and others, particularly paras 10, 11 & 12, which are thus–\n<\/p>\n
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\n                                   14<\/span><\/p>\n
     “10.   In   my   opinion,   the   submission   of   the   learned
\n     counsel   for   the   respondents   cannot   be   accepted   for
\n     more than one reason. A plain reading of the letter  <\/p>\n
     dated   22.9.1993   indicates   that   the   appointment   is
\n     made   on   probation   for   a   period   of   two   years.   The
\n     M.E.P.S.   Rules   required   appointment   order   to   be  <\/p>\n
     issued   in   a   particular   manner.   Once   such   an
\n     appointment order is issued, the management cannot
\n     by means of a          so-called agreement reduce the
\n     terms   of   appointment   or   change   the   nature   of   the <\/p>\n
     status of the employee.\n<\/p>\n
     11.   Neither   the   M.E.P.S.   Act   nor   the   Rules   framed  <\/p>\n
     thereunder   contemplate   any   agreement   between   the
\n     management of the school and an employee in respect  <\/p>\n
     of the appointment and  the status of the employee.
\n     Therefore, in my view, it would be held that the so-
\n     called agreement which has been purportedly signed  <\/p>\n
     by the parties on 20.9.1994 has no effect in law and
\n     cannot be discharged from service on the basis of such
\n     an   agreement.   Besides,   the   contention   that   the
\n     petitioner was appointed against a reserved category  <\/p>\n
     post, is also without merit.   There is no condition in
\n     the   appointment   letter   that   the   appointment   was  <\/p>\n
     being made against the reserved category post or that
\n     the appointment was only for a temporary period, till
\n     such time as a suitable candidate from the reserved
\n     category was available.\n<\/p>\n
     12.   In   these   circumstances,   the   submission   of   the
\n     learned   counsel   for   the   respondents   that   the
\n     appointment was for  a temporary  period  cannot be  <\/p>\n
     accepted.     There   can   be   no   doubt   that   the
\n     appointment   was   on   probation   and,   therefore,   the
\n     petitioner   would   be   deemed   to   be   permanent   after
\n     completion   of   two   years   in   service   i.e.   from
\n     6.10.1995.  There is no material on record to indicate
\n     that during the period of probation the behaviour or
\n     work of the petitioner was not upto the mark. Apart
\n     from   this,   the   question   of   the   petitioner   being
\n     appointed against a reserved category post does not <\/p>\n
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\n                                           15<\/span><\/p>\n
            arise. The post to which the petitioner was appointed
\n            was   that   of   a   Librarian   which   is   an   isolated   post.
\n            There is no pleading in the written statement that the  <\/p>\n
            institution   was   running   more   than   one   school   and
\n            that, therefore, the post was not an isolated post.”\n<\/p>\n
    He has also relied on the judgment of this Court reported in  2007 <\/p>\n
    (2) Mh.L.J. 105; President, Mahila Mandal, Sinnar and another <\/p>\n
    vs. Sunita Bansidhar Patole wherein it has been held that <\/p>\n
            “once it is clear that the post wherein the employee
\n            was appointed was not a permanent vacancy,  unless  <\/p>\n
            it is specifically disclosed by the Roster that the same
\n            was meant to be filled in by appointment of a reserved
\n            category candidate, the provisions of Section 5(1) of  <\/p>\n
            the M.E.P.S. Act are clearly attracted”.\n<\/p>\n
    He has further relied on the judgment reported in 2007 (6) Mh.L.J.\n<\/p>\n
    563,   Hindi   Vidya   Bhawan,   Mubmai   and   others     vs.   Presiding <\/p>\n
    Officer, School Tribunal Mumbai & others, wherein in para 35, it <\/p>\n
    has been observed thus-\n<\/p>\n
            “35. If the scheme under sections 4, 5 9 and 11 of the Act in
\n            particular   are   put   together   and   kept   in   view,   it   clearly
\n            follows   that   the   entire   procedure   including   conditions   of <\/p>\n
            service   in   a   private   school   has   been   provided   for   by   this
\n            Special Legislation and there is no need to fall back upon
\n            the general  principles laid  down by the judgments of  the
\n            Supreme Court and High Courts while dealing with cases
\n            under the other Acts more particularly when the provisions
\n            of the special Act are plain, clear and require no aid for its
\n            interpretation from outside.   The provisions\/scheme of the
\n            Act   is   clear   and   needs   no   aid   from   outside.   When   the  <\/p>\n
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\n                                           16<\/span><\/p>\n
             Legislature   provides   a   special   statute,   as   the   present,   to
\n             cover   a   given   situation,   there   is   an   obligation   on   the
\n             institution while employing members of the staff to follow  <\/p>\n
             the procedure and then obtain the protection which the law
\n             intends to confer. The petitioners who had failed to follow
\n             the   procedure   for   appointing   the   respondent-employees <\/p>\n
             cannot obtain protection under the Act and refuse to make
\n             them permanent. Similarly, if the proposition canvassed by
\n             the petitioners that the tribunal could not have decided the
\n             issue   of   relationship   between   the   appellant   and   the <\/p>\n
             institution, as employer and employee, in the appeal under
\n             section   9   of   the  Act,   no  appeal   would   proceed   on   merits
\n             before   the   tribunal   The   institutions   would   frustrate   the
\n             remedy of appeal by taking such a defence\/stand in every  <\/p>\n
             matter.<\/p><\/blockquote>\n
        Again he has relied on the unreported judgment of this Court in <\/p>\n
    Writ   Petition   No.   2559   of   2001,   wherein   it   has   been   observed <\/p>\n
    thus-\n<\/p>\n
            “…..The   argument   made   before   this   court   was   that   the  <\/p>\n
            School   was   getting   the   recognition   from   1989   on   yearly
\n            basis and, therefore, appointment of Respondent no.2 can
\n            not   said   to   be   permanent.   According   to   me,   once   it   is
\n            admitted that the School had recognition for the years 1989  <\/p>\n
            till 1993,  which fact is not disputed, the mere fact that the
\n            recognition   was   from   year   to   year   basis   would   have   no
\n            bearing   on   the   question   as   to   whether   the   initial
\n            appointment   of   Respondent   no.2   was   permanent   or
\n            temporary. It can be seen from the appointment order itself  <\/p>\n
            that   the   appointment   was   for   a   period   of   two   years   on
\n            probation.   Under   Section   5   of   the   M.E.P.S.   Act,   the
\n            employee   appointed   on   probation,   on   completion   of   his
\n            probation, is deemed to have been confirmed. The reliance
\n            was also placed on Rule 16 of the Maharashtra Employees
\n            of Private Schools (Condition of Service) Rules, 1981.  Once
\n            it is held that on completion of probation period, respondent
\n            No. 2 became permanent, rule 16(2) , which proves that a  <\/p>\n
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\n                                            17<\/span><\/p>\n
           non-permanent   employee   shall   be   deemed   to   have
\n           abandoned service, will have no bearing or applicability to
\n           the facts of the present case.”\n<\/p><\/blockquote>\n
    And the judgment of this Court reported in  2009(2) Mh.L.J. 121 <\/p>\n
    Matoshri     Ramabai   Ambedkar   Vidyarthi   Vasatigruh   Trust   and <\/p>\n
    another  vs.  Bharat D Hambir and another,  wherein it has been <\/p>\n
    observed in para 5A thus–\n<\/p>\n
           “5A. Of late, there is a growing tendency of managements of
\n           private  schools to appoint temporary employees from year to <\/p>\n
           year, even though the vacancy is permanent and an adequate
\n           work   load   is   available.   This   leads   to   grave   uncertainty   for
\n           teachers and places them at a mercy of the managements. The  <\/p>\n
           temporary appointment of a teacher who questions unethical
\n           practices of the management is promptly terminated. He or she
\n           who questions is cast away.   Those who turns a blind eye or
\n           worse, become willing participants in a pattern of exploitation,
\n           are retained. This is a perversion of what was intended by the  <\/p>\n
           State legislation enacted in 1977.  Placing teachers in a state of
\n           eternal uncertainty is destructive of the cause of education. In  <\/p>\n
           numerous cases before this Court, the grievance is that teachers
\n           of   aided   institutions   are   being   subjected   to   extortionate
\n           demands by unscrupulous managements. Education has become
\n           a   business   and   management   of   private   schools,   with   notable  <\/p>\n
           exceptions, are becoming pirates in the high seas of education.
\n           The interpretation of section 5 of the Act must be purposive –
\n           one   that   would   attain   the   statutory   object   and   not   lead   to
\n           negation of statutory intent. Once a permanent vacancy arises,
\n           a   management   is   duty   bound   statutorily   to   fill   it   up   by
\n           appointment   a   duly   qualified   candidate   or   candidates.   A  <\/p>\n
           regular   process   of   selection   must   be   held.   A   duly   qualified
\n           candidate has to be appointed. Temporary appointments can by
\n           definition   be   made   when   the   vacancy   is   temporary.   In   such
\n           cases, the exigencies of education require that students must be
\n           imparted education and a vacancy even for a short period will
\n           cause   serious   hardship.   But   temporary   appointments   are   in
\n           exception.  Making temporary appointments the rule is to give a
\n           tool   of   subversion   to   the   hands   of   unethical   managements.
\n           Temporary appointments, followed as a practice become a tool  <\/p>\n
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\n                                           18<\/span><\/p>\n
           of subversion because they perpetuate a region of uncertainty
\n           about service, place the teacher in a position of perpetual fear
\n           and deprive the teacher of the stability needed to contribute to  <\/p>\n
           the   process   of   moulding   young   minds.   This   Court   must
\n           emphasis   with   all   the   authority   at   its   command   that   a
\n           subversion of statutory intent should not be allowed. The Court  <\/p>\n
           will not allow itself  to be a mute  by stander  to the  growing
\n           trend of a lack of ethics in the management of private schools.
\n           Judicial   intervention   is   warranted   in   order   to   preserve   the
\n           statutory intent.”\n<\/p><\/blockquote>\n
    I have considered the authorities referred by the learned counsel for <\/p>\n
    the petitioner.\n<\/p>\n
    15.<\/p>\n
               As against this, the learned counsel for Respondent Nos.\n<\/p>\n
    2 & 4 has relied on following authorities, viz.–\n<\/p>\n
    (1)         2007(6)   Mh.L.J   563;   Hindi   Vidya   Bhavan,   Mubmai
\n    and   another   vs.     Presiding   Officer,   School   Tribunal,   Mumbai <\/p>\n
    and others.\n<\/p>\n
    (2)         1997   (3)   Mh.L.J.697;   Anna   Manikrao   Pethe   vs.
\n    Presiding   Officer,   School   Tribunal,   Amravati   and   Aurangabad <\/p>\n
    Division, Amravati and others<\/a>.\n<\/p>\n
    (3)        2007   (1)   Mh.L.J   597;   St.   Ulai   High   School   and <\/p>\n
    another vs. Devendraprasad Jagannath Singh and another.\n<\/p>\n
    (4)        2007(6)   Mh.L.J.   667;   Priyadarshini   Education   Trust <\/p>\n
    and others vs. Ratis (Rafia) Bano<\/a> d\/o Abdul Rasheed and others<\/p>\n
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\n                                           19<\/span><\/p>\n
    He has also referred to the judgment of this Court in  2006(2) <\/p>\n
    Mh.L.J.   530;     Ramchandar   Ramadhar   Yadav   vs.   Hyderabad <\/p>\n
    (Sind)   National   Collegiate   Board   and<\/a>   another.,   wherein   it   has <\/p>\n
    been held that ;\n<\/p>\n
            “when petitioner was not appointed for a fixed period, the
\n            order   of   appointment   clearly   gave   an   indication   that   the  <\/p>\n
            vacancy in the post of Peon was a clear vacancy caused due
\n            to the resignation of one employee. At any rate, no material  <\/p>\n
            is on record to show that the vacancy in the post of Peon
\n            was   temporary   or   that   there   was   no   permanent   vacancy.  <\/p><\/blockquote>\n
            Having gone through the appointment order, it is clear that  <\/p>\n
            the   appointment   of   the   petitioner   was   against   clear
\n            permanent vacancy notwithstanding the appointment order
\n            stipulated   it   to   be   temporary.   Mere   use   of   the   word
\n            “temporary”   by   itself   will   not   make   the   appointment  <\/p>\n
            temporary. The order of the Education Officer granting or
\n            refusing   to   grant   approval   is   not   relevant   to   decide   the  <\/p>\n
            status   of   the   petitioner   because   the   question   of   grant   of
\n            approval   is   between   the   Education   Officer   and   the
\n            management and the said is relevant only for the purposes
\n            of grant-in-aid by the State Government. As a matter of fact,  <\/p>\n
            the Education Officer while granting approval ought to have
\n            applied his mind to the order of appointment and ought not
\n            to have treated it as temporary appointment. He ought to
\n            have   granted   his   approval   for   two   years.   In   the
\n            circumstances, the Tribunal  was not right in deciding the <\/p>\n
            legality of the termination order taking shelter of the order
\n            of approval granted by the Education  Officer<\/p>\n
    The   learned   counsel   has   also   referred   to   the   judgment   of   the <\/p>\n
    Division   Bench   of     this   Court   reported   in  2007(6)   Mh.L.J.   667;\n<\/p>\n
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\n                                           20<\/span><\/p>\n
    Priyadarshini Education Trust and others vs. Ratis (Rafia) Bano<\/a> <\/p>\n
    d\/o Abdul Rasheed and others wherein it has been held thus;\n<\/p>\n
             “Duly   appointed,   in   the   manner   prescribed”   would   be  an
\n             appointment of a person who is eligible (qualified for the
\n             post) for appointment, who is selected   by due process of
\n             selection   i.e.   by   competition   amongst   all   eligible   and  <\/p>\n
             desirous candidates, and who is appointed on a permanent
\n             vacant post. In other words, inviting applications, as also
\n             holding of screening tests, enabling all eligible and desirous
\n             candidates to compete for selection and appointment, is a  <\/p>\n
             must.   Once   an   eligible   candidate   (duly   qualified   as
\n             required) is selected by selection process as above, for filling  <\/p>\n
             in   a   permanent   vacancy,   there   is   no   option   for   the
\n             management   and   it   is   obligatory   on   it   to   appoint   such
\n             person on probation for a period of two years. It is neither  <\/p>\n
             open for the management to appoint him for one academic
\n             year or any period shorter than two years probation period,
\n             nor it is open for Education Officer to grant approval for
\n             such shorter period (in fact, in view of requirement as in  <\/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).   The   candidate   thus
\n             selected with due process and appointed on probation shall
\n             enjoy status of deemed permanency on completion of two
\n             years,   unless   extension   of   probation   is   informed,   or  <\/p>\n
             termination  is  ordered.  The  appointment   of   a  person  not
\n             belonging   to   reserved   category,   in   a   post   reserved   for   a
\n             particular category, because the candidate of that category
\n             is not available, shall be absolutely temporary and on an
\n             year   to   year   basis,   governed   by   sub-rule   (9)   of   Rule   9,  <\/p>\n
             although in a permanent vacancy.”\n<\/p><\/blockquote>\n
    16.          On perusal of these authorities and considering the issues <\/p>\n
    raised   in   the   instant   case   in   hand,   one   has   to   see   whether   the <\/p>\n
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\n                                           21<\/span><\/p>\n
    appointment   of   the   petitioner   was   made   on   “probation”   in   a <\/p>\n
    “permanent   vacancy”   and   whether   it   was   in   conformity   with   the <\/p>\n
    procedure   laid   down;   before   the   merits   of   the   case,   can   be <\/p>\n
    considered.\n<\/p>\n
    17.         In this context,  Section 5 of the M.E.P.S. Act, needs to be <\/p>\n
    referred, which read thus–\n<\/p>\n
            “5. Certain obligations of Management of private
\n            schools :\n<\/p><\/blockquote>\n
            (1) The Management shall, as soon as possible, fill in,
\n            in the manner prescribed, every permanent vacancy in
\n            a private school by the appointment of a person duly  <\/p>\n
            qualified to fill such vacancy :\n<\/p><\/blockquote>\n
            [Provided that unless such vacancy is to be filled in by  <\/p>\n
            promotion, the Management shall, before proceeding
\n            to   fill   such   vacancy   ascertain   from   the   Educational  <\/p>\n
            Inspector,   Greater   Bombay,   {the   Education   Officer,
\n            Zilla Parishad or, as the case may be, the Director or
\n            the   Officer   designated   by   the   Director   in   respect   of
\n            schools imparting technical, vocational, art or special  <\/p>\n
            education}   whether   there   is   any   suitable   person
\n            available on the list of surplus persons maintained by
\n            him, for absorption in other schools; and in the event
\n            of such person being available, the Management shall
\n            appoint that person in such vacancy.]<\/p>\n
            (2)   Every   person   appointed   to   fill   a   permanent
\n            vacancy   shall   be   on   probation   for   a   period   of   two
\n            years. Subject to the provisions of sub-sections (3) and
\n            (4), he shall, on completion of this probation period
\n            of two years, be deemed to have been confirmed.\n<\/p><\/blockquote>\n
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\n                                           22<\/span><\/p>\n
             (3) If in the opinion of the Management, the work or
\n             behaviour of any probationer during the period of his
\n             probation, is not satisfactory, the Management may  <\/p>\n
             terminate   his   services   at   any   time   during   the   said
\n             period after giving him one month’s notice {or salary
\n             of one month in lieu of notice}<\/p>\n
             (4) If the services of any probationer are terminated
\n             under sub-section (3) and her is reappointed by the  <\/p>\n
             Management in the same school or any other school
\n             belonging to it within a period of one year from the
\n             date on which his services were terminated,  then the
\n             period of probation undergone by him previously shall  <\/p>\n
             be taken into consideration in calculating the required
\n             period   of   probation   for   the   purposes   of   sub-section  <\/p>\n
             (2).\n<\/p><\/blockquote>\n
             [4A.     Nothing   in   sub-section   (2),   (3)   or   (4)   shall
\n             apply   to   a   person   appointed   to   fill   a   permanent
\n             vacancy  by  promotion  or  by  absorption  as  provided
\n             under the provision to  sub-section(1)]<\/p>\n
             (5)   The   Management   may   fill   in   every   temporary  <\/p>\n
             vacancy by appointing a person duly qualified to fill
\n             such   vacancy.   The   order   of   appointment   shall   be
\n             drawn up in the form prescribed in that behalf, and
\n             shall state the period of appointment of such person.\n<\/p><\/blockquote>\n
    The relevant Rules can be found in M.E.P.S. Rules viz. Rule 6 & 9.\n<\/p>\n
    The   procedure   provided   for   appointment   of   a   teacher   has   to   be <\/p>\n
    followed scrupulously, otherwise such appointments cannot be said <\/p>\n
    to be legal.   The issue as to whether the appointment is proper or <\/p>\n
    not, has to be considered by the School Tribunal while considering <\/p>\n
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\n                                           23<\/span><\/p>\n
    the appeal of the petitioner.\n<\/p>\n
    18.           In   these   circumstances,   the   appointment   order   of   the <\/p>\n
    petitioner needs to be closely scrutinized.  The relevant appointment <\/p>\n
    order reads as under<\/p>\n
                                APPOINTMENT ORDER
\n                    OFFICE OF PREETI SHIKSHAN SANSTHA, <\/p>\n
                                SANT TUKDOJI WARD<\/p>\n
                      BHANDARA, TQ. & DISTT. BHANDARA
\n                                         No.1\/98<\/p>\n
               Ku.Jaimala Bhaurao Ramteke,
\n                        With   reference   to   your   application   dated
\n          31\/5\/98, you are informed that, with effect from 1.6.1998 <\/p>\n
          or the date on which you will join the services from that
\n          date, you are here by appointed as Assistant Teacher in the  <\/p>\n
          pay scale of Rs.1200\/- per month.,  You will be entitled to
\n          the   local   allowances,   housing   allowance   and   dearness
\n          allowance, as may be granted by the Government time to
\n          time.\n<\/p>\n
          2)           This appointment is on the vacancy created due
\n          to leave, for the period between 1.6.1998 to 30.5.2000 and
\n          is purely on temporary basis.\n<\/p>\n
                      After   completion   of   this   period,   your   services
\n          will come to an end without any intimation.\n<\/p>\n
                     Your   appointment   is   for   two   years,   or   for
\n          probation period.\n<\/p>\n
          3)           Your   services   will   be   governed   by   M.E.P.S.\n<\/p>\n
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\n                                               24<\/span><\/p>\n
         (Conditions   of   Services)   Regulation   Act,   1977,   and   the
\n         Rules framed thereunder.\n<\/p>\n
         4)            Within a period of three months from the date
\n         of   joining   of   this   post,   you   will   have   to   get   yourself <\/p>\n
         medically examined, from Civil Surgeon, Bhandara. Your
\n         appointment is subject to  the fitness certificate to be issued
\n         by the Doctor named above.\n<\/p>\n
         (5)         Please acknowledge this appointment order and
\n         communicate   the   acceptance   thereof   within   a   period   of
\n         three days from the date of receipt of this order.\n<\/p>\n
         (6)         If within the period shown in paragraph No.5,  <\/p>\n
         no reply is received, this order will be treated as cancelled.\n<\/p>\n
             Bhandara                                                        Sd\/-\n             Dt. 1.6.98                                               Secretary,\n                                      Preeti Shikshan Sanstha, Bhandara,\n      \n   \n\n\n\n<\/pre>\n
    No doubt, it shows that the appointment was for two years and one <\/p>\n
    of the clause reads;   “it is for two years or for probation period”.\n<\/p>\n
    But   it   appears   that   the   said   order   is   as   per   Schedule   D   is   in <\/p>\n
    proforma,   provided   for   issuance   of   letter   of   appointment,   which <\/p>\n
    read thus–\n<\/p>\n
                                        SCHEDULE ‘D’
\n                               ORDER OF APPOINTMENT
\n                                                                  No.            Date
\n             From
\n             To<\/p>\n
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\n                                    25<\/span><\/p>\n
     Shri\/Smt._____________________________________
\n     ___
\n     With reference to your application dated _________, I  <\/p>\n
     have the pleasure to inform you that you are hereby
\n     appointed as ______ on Rs._______ per month in the <\/p>\n
     scale   of   Rs._____   with   effect   from   ________   or   the
\n     date   you   report   for   duty.     You   will   be   entitled   to
\n     allowances   such   as   compensatory   local   allowance,
\n     house   rent   allowance   and   dearness   allowance   as  <\/p>\n
     specially   sanctioned   by   Government   from   time   to
\n     time.\n<\/p><\/blockquote>\n
     2.  Your appointment is purely temporary for a period  <\/p>\n
     of   ____   months\/years   from   ______   in   the
\n     leave\/deputation   vacancy.  After   expiry   of   the   above <\/p>\n
     period, your services shall stand terminated without
\n     any notice.\n<\/p>\n
                                  or
\n          Your appointment is on probation for a period of
\n     two years.\n<\/p>\n
     3. The terms of your employment and conditions of  <\/p>\n
     service   shall   be   as   laid   down   in   the   Maharashtra
\n     Employees of Private Schools (Conditions of Service)
\n     Regulation   Act,   1977,   and   the   Rules   made
\n     thereunder.\n<\/p>\n
     4. You shall have to undergo a medical examination
\n     by   Dr.   ____   within   three   months   from   the   date   of
\n     joining the post. Your appointment shall be conditions
\n     pending the receipt of physical fitness certificate from  <\/p>\n
     the doctor whose name is mentioned above.\n<\/p>\n
     5. You are requested to acknowledge receipt of this
\n     order   of   appointment   and   communicate   the
\n     acceptance of the appointment within ____ days from
\n     the date of receipt of the same.\n<\/p>\n
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\n                                              26<\/span><\/p>\n
              6. If no reply accepting the appointment is received
\n              with the period mentioned in paragraph 5, the order
\n              shall be treated as cancelled.\n<\/p>\n
                                                          Yours faithfully,<\/p>\n
                                    Head   Master   and   Secretary   of   the
\n                                    School   Committee   (in   the   case   of
\n                                    appointment   order   of   teaching   and
\n                                    non-teaching   staff   of   the   school  <\/p>\n
                                    excluding the Head Master\/Assistant
\n                                    Head Master.)
\n                                    Chief Executive Officer (in the case of  <\/p>\n
                                    order   of   appointment   of   Head
\n                                    Master\/Assistant Head Master)<\/p>\n
    It clearly appears that the intention was to appoint the petitioner <\/p>\n
    only for temporary period.   The words do indicate this i.e. “Agdi <\/p>\n
    Tatpurtya Swarupachi Ahe”(                                                     ).  It <\/p>\n
    appears that the words appointment on probation seems to be there <\/p>\n
    only because of the proforma, which remained to be scored. But the <\/p>\n
    tenor   of   the   said   appointment   order   does   not   indicate   that   the <\/p>\n
    appointment was in the vacancy of the permanent post of a teacher.\n<\/p>\n
    The words (                                                                               )  <\/p>\n
    “Raja Pratiniyukti Ya Nimitya Rikta Zalelya Padawar”,  clearly show <\/p>\n
    that   their   intention   was   to   appoint   the   petitioner   on   temporary <\/p>\n
    vacancy.  Therefore, it was for the petitioner to demonstrate that at <\/p>\n
    the relevant time post of permanent teacher was vacant, permission <\/p>\n
    to fill in that post was sought from E.O. and after following due <\/p>\n
                                                                    ::: Downloaded on – 09\/06\/2013 14:34:02 :::<\/span>
\n                                           27<\/span><\/p>\n
    procedure, she was so appointed.\n<\/p>\n
    19.          No doubt, the petitioner has  now tried to produce  the <\/p>\n
    documents through the Education Officer, to show that the relevant <\/p>\n
    advertisement   was   issued,   applications   from   eligible   candidates <\/p>\n
    were invited and thereafter selection of the petitioner was made to <\/p>\n
    that post.   But all these contentions do not seem to be specifically <\/p>\n
    pleaded,  raised & proved before the School Tribunal.\n<\/p>\n
    20.          Learned   counsel   for   the   respondents   has   and   perhaps <\/p>\n
    rightly pointed out that the advertisement issued by Respondent and <\/p>\n
    produced by the Education Officer that the said advertisement was <\/p>\n
    issued   after   the   initial   appointment   of   the   petitioner.   It  does   not <\/p>\n
    seem to be related to the appointment of petitioner.  More over no <\/p>\n
    such record was called by the petitioner before the School Tribunal <\/p>\n
    to prove this aspect.\n<\/p>\n
    21.          It would be seen from the order of appointment of the <\/p>\n
    petitioner as well as proforma appointment order that there are two <\/p>\n
    distinct clauses, (i)- appointment is to the post on purely temporary <\/p>\n
    basis   for   such   and   such   period   in   leave   vacancy,   and,   (ii)   –\n<\/p>\n
    the   appointment   is   on   probation   for   a   period   of   two   years.     As <\/p>\n
                                                                ::: Downloaded on – 09\/06\/2013 14:34:02 :::<\/span>
\n                                            28<\/span><\/p>\n
    there is specific mention regarding the appointment of petitioner in <\/p>\n
    leave   vacancy,     in   the   instant   case,   it   cannot   be   said   to   be   an <\/p>\n
    appointment on a post of permanent vacancy.\n<\/p>\n
    22.           I have already pointed out above that there is no material <\/p>\n
    on record to suggest that all the relevant rules and provisions were <\/p>\n
    infact   followed   before   the   appointment   of   the   petitioner   and   the <\/p>\n
    Education Officer had granted permission to recruit the employee in <\/p>\n
    the permanent vacancy as required under Section 5 of the M.E.P.S.\n<\/p>\n
    Act. Mere approval to the appointment of the petitioner would not <\/p>\n
    go   to   resolve   the   irregularity\/illegality   committed   by   the <\/p>\n
    management in the appointment of the petitioner. The authorities <\/p>\n
    referred by the learned counsel for petitioner would not help him.\n<\/p>\n
    23.           At this stage, it is necessary to refer to the judgment of <\/p>\n
    this   Court   in  2003(1)   Mh.L.J.   425;   Nehru   Jankalyan   Bahu-\n<\/p>\n
    Uddeshiya   Shikshan   Sanstha,   and   another     vs.   Mohan <\/p>\n
    Suryabhan Wanjari and another, wherein it has been observed in <\/p>\n
    paras 10 and 11 thus–\n<\/p>\n
             10.   I   have   considered   the   contentions   canvassed   by   the
\n             learned   counsel   for   the   parties.   From   the   above   referred
\n             facts, it appears that initial appointment of the respondent  <\/p>\n
                                                                 ::: Downloaded on – 09\/06\/2013 14:34:02 :::<\/span>
\n                                    29<\/span><\/p>\n
     no.1 made in the year 1991 was on clock hour basis and
\n     was till 30.6.1992.   Similar is the situation in respect of
\n     second appointment of respondent no.1, which was made in  <\/p>\n
     the   year   1992.     The   respondent   no.1   was   thereafter
\n     appointed temporarily on 9.8.1993 for a period of one year
\n     and   Education   Department   accorded   approval   to   this  <\/p>\n
     appointment as a part time Lecturer. The respondent No. 1
\n     was   thereafter   appointed   in   the   year   1994-95   vide   order
\n     dated 3-8.1994 purely on temporary   basis for a period of
\n     one year.  Perusal of the appointment order dated 9-8-1993  <\/p>\n
     shows that appointment of the respondent no.1 was purely
\n     on temporary basis for a period of one academic session, i.e.
\n     from 9-8-1993 till end of the said academic session. Though
\n     it is mentioned in the said order that it is in a clear vacancy,  <\/p>\n
     the words “clear vacancy” need to be understood in a right
\n     perspective   and   are   required   to   be   given   appropriate  <\/p>\n
     meaning. The original order of appointment shows that it
\n     was on probation for a period of one year. It is, therefore,
\n     clear that this order of appointment cannot be said to be an  <\/p>\n
     appointment in a clear vacancy on a permanent post and on
\n     probation   for   a   period   of   two   years   and,   therefore,   this
\n     appointment order does not confer any right of permanency\n<\/p><\/blockquote>\n
     – deemed or otherwise contemplated under Section 5(2) of  <\/p>\n
     the Act.\n<\/p><\/blockquote>\n
     11.   Similarly, another appointment order dated 3.8.1994
\n     was   till   end   of   the   said   academic   session.   This   order   of
\n     appointment also shall not create any right of permanency,
\n     even if word “probation” is finding place in the order since  <\/p>\n
     Management   violated   the   mandate   of   sub-section   (1)   of
\n     section   5   of   the   Act.     Sub-Section   (1)   of   Section   5
\n     contemplates that Management shall as soon as possible fill
\n     in, in the manner prescribed, every permanent vacancy in a
\n     private School by appointment of a person duly qualified to  <\/p>\n
     fill such vacancy and proviso to sub-section (1) of Section 5
\n     further contemplates that before filling up such vacancy by
\n     appointment, the management is required to ascertain from
\n     the   Education   Department   whether   there   is   any   suitable
\n     person available on the list of surplus persons maintained by
\n     it for absorption in other Schools and in the event of such
\n     person   being   available,     the   Management   is   required   to
\n     appoint   that   person   in   vacancy.     The   above   referred  <\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 14:34:02 :::<\/span>
\n                                            30<\/span><\/p>\n
             provision has a rationale behind it as Teachers\/Lecturers,
\n             who are permanent and declared surplus because of certain
\n             contingencies   are   entitled   to   be   absorbed   in   some   other  <\/p>\n
             School or Junior College in view of provisions of sub-rule
\n             (2) of  Rule 26 of  the M.E.P.S. Rules and, therefore, it is
\n             made   incumbent   on   the   management   to   obtain   prior  <\/p>\n
             permission from the Education Department before filling up
\n             the permanent vacancy.   However, in the instant case, no
\n             such   permission   was   sought   by   the   Management   before
\n             issuing order of appointment dated 9-8-1993 or 3-8-1994 <\/p>\n
             and,   therefore,   procedure   adopted   by   the   Management   is
\n             inconsistent with the above referred provisions and hence,
\n             the said appointment of respondent No.1 cannot be treated
\n             as   a   valid   appointment   for   the   purpose   of   grant   of  <\/p>\n
             permanency in the post of Junior College Lecturer.”\n<\/p>\n
    It was  held that  sub-section   5 of  M..E.P.S. Act  contemplates  that <\/p>\n
    management shall as soon as possible fill the post in the manner <\/p>\n
    prescribed for,  if the manageress is required to appoint that person <\/p>\n
    in the vacancy.\n<\/p>\n
    24.           Even the reply of the Education Officer is silent on such <\/p>\n
    compliance   by   the   management.   It   is   necessary   to   note   that   the <\/p>\n
    illegal appointment can not obtain the stature of legal appointment <\/p>\n
    simply because it is challenged by the petitioner and not contested <\/p>\n
    by the Education Officer.   Illegality has to be illegality for ever.  It <\/p>\n
    can,   in no circumstances, be allowed to be converted into legality <\/p>\n
    even   if   some   parties   do   not   object,   particularly,     in   the   cases   of <\/p>\n
    appointments   where   prescribed   procedure   has   to   be   followed <\/p>\n
    because of some object and rationale behind it.\n<\/p>\n
                                                                  ::: Downloaded on – 09\/06\/2013 14:34:02 :::<\/span>
\n                                         31<\/span><\/p>\n
    25.          In these circumstances,   the view taken by the learned <\/p>\n
    School Tribunal cannot be said to be incorrect.\n<\/p>\n
    26.          Learned counsel for the petitioner has contended that the <\/p>\n
    petitioner was continued in service till 2008 by virtue of the interim <\/p>\n
    order of the School Tribunal.  This fact,  by itself cannot create any <\/p>\n
    equity in favour of the petitioner for getting her appointment to be <\/p>\n
    converted into legal appointment as such, when her appointment <\/p>\n
    was illegal ab-inito. No doubt, she appears to have been conferred <\/p>\n
    with  some   financial  powers  and charge  of  headmistress,  but that <\/p>\n
    fact by itself will not invite an inference of her appointment being in <\/p>\n
    place of permanent employee.   Alleged satisfactory completion of <\/p>\n
    probation   and   only   for   that   she   would   not   get   the   status   of <\/p>\n
    permanent employee.\n<\/p>\n
    27.          Here   is   the   case   where   respondent   Nos.   2   &   4   are <\/p>\n
    alleging that petitioner was appointed in the said post inasmuch as <\/p>\n
    she was daughter in law of the secretary of the managing committee <\/p>\n
    of respondent Management. I need not go into the details of such <\/p>\n
    allegations   and  appreciation   thereof.    Fact  remains   that  once  the <\/p>\n
    appointment is not proved to have been taken place by following <\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 14:34:02 :::<\/span>
\n                                            32<\/span><\/p>\n
    legal   procedure,   it   would   not   create   any   right   in   favour   of   the <\/p>\n
    petitioner that of a “permanent employee”.   I need not go into the <\/p>\n
    aspect of remedies available to the petitioner in such circumstances.\n<\/p>\n
    Such aspect was considered in the Nehru Jankalyan’s case, referred <\/p>\n
    above, wherein in para 12 it has been observed thus–\n<\/p>\n
             “12.   For   the   reasons   stated   hereinabove,   the   impugned
\n             order   passed   by   the   School   Tribunal   is   misconceived   and
\n             illegal and hence, the same is quashed and set aside.\n<\/p><\/blockquote>\n
                           On   the   backdrop   of   above   referred   facts,   it   is  <\/p>\n
             undoubtedly   clear   that   conduct   of   the   petitioner
\n             Management   in   not   obtaining   prior   permission   from   the
\n             concerned   Education   Authority   before   appointment  <\/p>\n
             respondent   NO.1   is   inconsistent   with   sub-section   (1)   of
\n             section   5   of   the   Act   and   entire   fault   lies   with   the
\n             Management.   It   is   no   doubt   true   that   such   appointment
\n             being inconsistent with the provisions of the Act is not valid.
\n             However, this is due to sheer negligence of the Management  <\/p>\n
             in not action as per provisions of the Act  and, therefore, it  <\/p>\n
             would   be   appropriate   that   respondent   no.1   is   adequately
\n             compensated   by   the   Management.   Hence,   petitioner
\n             Management is directed to pay rupees thirty thousand as
\n             compensation to the respondent No.1 within a period of six  <\/p>\n
             weeks either by a cheque or demand draft”\n<\/p><\/blockquote>\n
    28.          In my opinion, when the petitioner was continued in the <\/p>\n
    employment   only   by   virtue   of   the   interim   order   of   the   school <\/p>\n
    tribunal,  she would not be entitled for such compensation; by the <\/p>\n
    order of this Court in this petition..  If at all she wants to claim any <\/p>\n
    compensation, she can  do so, by taking  recourse  to the  available <\/p>\n
                                                                  ::: Downloaded on – 09\/06\/2013 14:34:02 :::<\/span>
\n                                         33<\/span><\/p>\n
    legal remedies. Liberty to the petitioner in this context.\n<\/p>\n
    29.          In   these   circumstances,   it   is   also   not   necessary   to <\/p>\n
    consider as to what is the effect of “status quo’  order and say of the <\/p>\n
    respondent   management   that   the   petitioner   was   relieved   on <\/p>\n
    11.12.2008 after the appeal of the petitioner was dismissed.\n<\/p>\n
    30.          The   result   of   the   above   discussion   is   obvious.     The <\/p>\n
    petition needs to be dismissed.  The same is dismissed.  No order as <\/p>\n
    to costs.\n<\/p>\n
    31.          It is also necessary to observe that the Education Officer <\/p>\n
    need to take appropriate actions at the appropriate stage when the <\/p>\n
    appointments of teachers are made in the private schools receiving <\/p>\n
    ‘grant-in-aid’ and approvals are sought for such appointments. They <\/p>\n
    are legally bound to consider whether such appointments have been <\/p>\n
    made   by   following   due   procedure   of   law.     If   any   breaches   are <\/p>\n
    noticed, it is for the Education Officer to take appropriate action,  at <\/p>\n
    that very moment against the management and the school,  as may <\/p>\n
    be permissible at law.   Otherwise they need to be held liable as it <\/p>\n
    gives   rise   to   unwarranted   litigation   &   cause   harassment   to   the <\/p>\n
    concerned employees at times injustice.   To ensure such actions, a <\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 14:34:02 :::<\/span>
\n                                               34<\/span><\/p>\n
    copy   of   this  judgment     may   be   forwarded   to   the   Secretary, <\/p>\n
    Education Department,  Mantralaya, Mumbai for issuing appropriate <\/p>\n
    directions.<\/p>\n
\n\n\n\n\n                                                                       \n                                                                                    JUDGE \n\n\n\n\n                                                                      \n    Rvjalit\n\n\n\n\n                                                      \n                                  ig       **********\n                                \n      \n   \n\n\n\n\n\n\n                                                                       ::: Downloaded on - 09\/06\/2013 14:34:02 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Ku. Jaimala Bhaurao Ramteke vs Presiding Officer on 30 April, 2009 Bench: S.R. Dongaonkar 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR WRIT PETITION NO. 5413\/2008 Ku. Jaimala Bhaurao Ramteke, aged about 42 years, Occupation – Assistant Teacher, Saraswati Purva Madhyamik School, Koka (Jungle), Tahsil and District : […]<\/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-92170","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nKu. Jaimala Bhaurao Ramteke vs Presiding Officer on 30 April, 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\/ku-jaimala-bhaurao-ramteke-vs-presiding-officer-on-30-april-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ku. 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