1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. L.P.A. No. 229/2011 in WRIT PETITION NO. 5248/2007 (D) ( Dnyan Prasarak Shikshan Sanstha and ors. .vs. Sundarlal Hari Rokade and ors. ) ------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders. and Registrar's orders CORAM : B.P.DHARMADHIKARI & P.D. KODE, JJ. DATED : JUNE 08, 2011 Heard Advocate Shri S.R. Deshpande with Advocate Shri P.N. Mehta for petitioners, Advocate Shri Amol S. Mardikar for caveator/respondent no.1, Advocate Shri Morande for respondent no.2 and learned AGP Shri J.B. Jaiswal for Respondent no.3. The appeal challenging the oral termination filed by respondent no.1 was dismissed by School Tribunal after holding that he did not possess necessary experience for being appointed as Head Master on probation. The defence of the Management that he resigned from services was, however, not accepted by the School Tribunal. This judgment of the School Tribunal was challenged by the employee in Writ Petition No. 5248/2007. This Court in its judgment delivered on 21.4.2011 found that the findings of the School Tribunal about absence of necessary experience was vitiated. It 2 found that it was never the stand of the Management before the School Tribunal that he did not possess requisite experience as contemplated by Rule 3(1)(b) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 and the Management also never pleaded that his services were terminated on the ground that he did not possess requisite experience. The learned Single Judge, therefore, noted that the Tribunal has no occasion to record any finding on the question whether the appellant before it possessed requisite experience or not. The stand of the Management that employee had fraudulently obtained experience certificate was also looked into and the learned Single Judge has recorded that it was open to the appellant/Management to conduct an inquiry in that respect to take appropriate action. However, the said course was not adopted by the Management and hence termination even on that count could not have been justified. As there was no material on the record to show entitlement to back wages, the learned Single Judge found it appropriate to remand the matter back to the School Tribunal to adjudicate the dispute about the entitlement of the back wages. Shri Deshpande contends that appointment of the employee was on temporary basis and hence after expiry of that period, there could not have been any direction to reinstate him and in any case no relief for period thereafter could have been granted either by the School Tribunal or by this Court. In the alternative and without prejudice to this submission, he contends that 3 appointment on probation can also be discontinued by the Management for valid reasons and here the said appointment is brought to an end. He points out that Management has not assigned any reasons as termination is oral. He has relied upon the judgment of Hon’ble Apex Court reported in 2003 (1) Mh.L.J. 563- Bhartiya Gramin Punarrachana Sanstha .vs. Vijay Kumar and others to substantiate his contention that after expiry of period of two years, no relief could have been given to respondent no.1. The judgment reported in 2010(1) Mh.L.J. 117 – Dinkar s/o Baliramji Bundele .vs. Presiding Officer, School Tribunal, Amravati is also relied upon to urge that appointment even on probation could have been brought to an end in accordance with law and such employee is not entitled to relief of reinstatement. It is further contended that initial appointment is procured by producing fabricated document and that appointment is illegal. Similarly there was no previous permission obtained from the office of Deputy Director of Education before issuing advertisement and hence the appointment itself is illegal. As the appointment is illegal, the respondent no.1 does not get right to post and he could not have been reinstated. Advocate Shri Mardikar for respondent no.1 employee has supported the impugned order. With the assistance of the respective counsel appearing for the parties, we have perused the papers. We find that the contention about the appointment being illegal as the permission from the Deputy Director of Education was not obtained before publishing the 4 advertisement, was not raised before the learned Single Judge. In appeal before us though all possible grounds are raised, it is not urged that this contention was also pressed into service before this Court and it has not been looked into on 21.4.2011. The defence of the Management before the School Tribunal was specific. The defence was of voluntary resignation. There was no defence that Management by passing any resolution and by conscious act put an end to appointment on probation or to temporary appointment because of some valid reasons. All arguments advanced before this Court are, therefore, only roving one to take advantage of the findings recorded by the School Tribunal or by the learned Single Judge. The learned Single Judge has found that the appointment of respondent no.1 was on probation and it could have been put to an end in accordance with the law. Admittedly Management has not passed any resolution and there is no decision that performance during the probation of said employee was not satisfactory. It is, therefore, obvious that the termination is not on account of unsatisfactory performance. In fact the Management has lateron switched over its stand and accepted the case of the oral termination and the grievance made by the respondent no.1 about it and is trying to capitalize upon it by building an appropriate defence to justify it. This cannot be accepted. The finding of School Tribunal that he was appointed on probation is not erroneous or perverse. 5 The judgment of the Hon’ble Apex Court in Bhartiya Gramin Punarrachana Sanstha (supra) clearly shows that Laboratory Attendant was appointed for fixed term of two years and his services were terminated before expiry of said period of two years. The order of reinstatement was confined to the said period of two years i.e. till 23.6.1998. In present facts we find that the Management has not terminated the services of respondent no.1 at all. This judgment has no application. In Dinkar Baliramji Bundele (supra), the learned Single Judge of this Court has found that the petitioner before him was not a probationer and his appointment was purely temporary and subject to the terms of appointment order. In view of above and our findings already recorded above, this ruling has also no application. The Management before the learned Single Judge has contended that the petitioner before the learned Single Judge (present respondent no.1) did not fulfill the requirement of qualification. The learned Single Judge has found that documents on record revealed that said employee possessed necessary experience. The finding recorded by the School Tribunal, therefore, is found incorrect. The appellant has not taken any action against respondent no.1 for producing fabricated experience certificate. We do not find anything wrong with the conclusions reached by the learned Single Judge. As already noted above Management has to act only through “resolutions” and there is no decision by it to put an end to services of respondent no.1 for any reason what so ever. 6 During the hearing, Shri M.V. Samarth Advocate has pointed out to this Court that upon instructions from the employee who is working on vacancy caused because of removal of present respondent no.1, the intervention application is moved in the present L.P.A. The said application is not before this Court and in any case the proposed intervenor was not party either before the School Tribunal or before the learned Single Judge. Shri Samarth has pointed out that said employee had moved an application for intervention before the School Tribunal and that was rejected. It is obvious that his grievance can be looked into in accordance with the law as and when cause therefor arises. As such, we do not find any substance in the present L.P.A. L.P.A. is rejected with no order as to costs. JUDGE JUDGE halwai