1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO.72 OF 2004 IN WRIT PETITION NO.2311 OF 1990 The President, Janata Shikshan Mandal & Ors. ...... Petitioners. V/s Subhash Vithoba Shelke & Others. ...... Respondents. ----- Mr. S.M. Railkar for the Petitioners. Mr. V.Z. Kankariya for the Respondents. ----- ALONGWITH WRIT PETITION NO.7192 OF 2006 Mr. Ramesh S. Chavan ...... Petitoner. V/s The President, Janata Shikhsan Mandal & Ors. ...... Respondents. ----- None for the Petitioner. Mr. S.M. Railkar for the Respondent No.1. ----- CORAM : D.K. DESHMUKH & V.M. KANADE, JJ. DATE : 15 th January, 2008. P.C.: 2 1. The appellant in this letters patent appeal is challenging the judgment and order passed by the learned Single Judge dated 12 th September, 2003 in Writ Petition No.2311 of 1990. 2. Brief facts, in nutshell, are as under:- 3. The respondent No.1 was appointed as a part- time lecturer in English on 18/07/1987. It is an admitted position that his appointment was on probation for two years. The services of respondent No.1 were terminated by letter dated 20/03/1989 with effect from 29/06/1989. The respondent No.1 challenged the order of termination by filing an appeal before the College Tribunal. The College Tribunal allowed the appeal and held that the order of termination was illegal since no valid reason was assigned for terminating the services of respondent No.1. Against this decision, the Management preferred Writ Petition in this Court. By the impugned judgment, the learned Single Judge was pleased to dismiss the Writ Petition and the order passed by the Tribunal was confirmed. 4. After the Writ Petition No.2311 of 1990 was filed, Ramesh S. Chavan, Petitioner in Writ Petition No.7192 of 2006 filed this Petition seeking appropriate direction from this Court, directing the Management to grant permanent approval to his appointment, ignoring the pendency of the litigation between Subhash Vithoba Shelker and the 3 Management. By order dated 07/11/2006, Division Bench of this court had directed that this matter should be heard along with LPA No.72 of 2004. 5. Mr. Railkar, the learned Counsel appearing on behalf of the appellant, submitted that the learned Single Judge, as also the Tribunal, had not taken into consideration the judgment of the apex court and this Court wherein it was held that the Management has a right to terminate the services of a probationer before expiry of the period of probation without holding any inquiry. He invited our attention to the unreported judgment of this Court in the case of The Head Mistress, Sister Nivedita English Medium School Vs. Shri Kodandpani R. Kulkarni dated 25/06/2002 in Writ Petition No.4683 of 2001 as also the judgment of the apex court in the case of Hindustan Education Society and another vs. Sk. Kaleem Sk. Gulam Nabi and others, reported in AIR 1997 SC 2126. 6. Mr. Kankariya, the learned Counsel appearing on behalf of the respondent No.1 submitted that the respondent No.1 was already working in some other school and, therefore, he submitted that the respondent No.1 was entitled to the back wages from the date of the order of termination till the date when he was appointed in other school. He invited our attention to the affidavit filed by the respondent No.1 dated 29/09/2007 in the letters patent appeal. He invited our attention to para 7 of the said affidavit wherein the 4 respondent No.1 has stated that he would be satisfied if he is given nine months’ pay. 7. In our view, the submissions made by the learned Counsel appearing on behalf of the appellant will have to be accepted. It is an admitted position that the respondent No.1 was appointed for two academic years i.e. 1987- 88 & 1988-89. It is also an admitted position that his services were terminated before the expiry of two years. Further, perusal of the order of termination indicates that the said termination was a termination simplicitor. The Management has a right to terminate the services of a probationer before expiry of the period of two years, if his services are not found to be satisfactory and if no stigma is attached in his order of termination. 8. The apex court, in catena of cases, has accepted the right of the Management of terminating the services of a probationer before completion of the period of probation. It is only in cases where the order of termination is passed on account of any misconduct, the Management has to hold an inquiry, giving opportunity to the probationer to disprove the charges levelled against him. The apex court in its judgment in the case of Hindustan Education Society and another vs. Sk. Kaleem Sk. Gulam Nabi and others, reported in AIR 1997 SC 2126 has laid down the said ratio. The learned Single Judge of this Court (D.K. Deshmukh, J.) who is one of the Members of this Bench, in a judgment dated 25/02/2002 5 in Writ Petition No.4683 of 2001 has taken the same view. 9. The respondent No.1, even otherwise also, is not interested in reinstatement since he is already working in some other school. Since the Management has a right to terminate the services of the probationer on account of unsatisfactory performance, no right to receive salary is available to the respondent No.1. Hence, the contention of the learned Counsel appearing on behalf of respondent No.1 that the respondent No.1 may be paid 9 month’s salary cannot be accepted. 10. In the result, the letters patent appeal is allowed. The judgment and order passed by the learned Single Judge dated 12/09/2003 in Writ Petition No.2311 of 1990 is set aside. The orders passed by the College Tribunal dated 25/09/1989 and 01/03/1990 in Appeal No.11/89(S) are set aside. 11. In view of the order passed in the letters patent appeal, it is not necessary to pass any orders in Writ Petition No.7192 of 2006 and the Writ Petition is accordingly disposed of. 12. Since the appeal itself is disposed of, Civil Application No.92 of 2004 does not survive and the same is also disposed of. 6 (D.K. DESHMUKH, J.) (V.M. KANADE, J.)