1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1732 OF 2008 Samarth Seva Trust and another ..Petitioners. Vs. Nalini Satish Deshmukh and others ..Respondents. .... Mr. N.V. Bandiwadekar for the Petitioners. Mr. P.N. Joshi for Respondent No.1. Mr. S.D. Rayrikar, AGP for Respondent No.2. .... CORAM: DR. D.Y. CHANDRACHUD, J. 1st December, 2008. P.C. : 1. Rule, returnable by consent forthwith. With the consent of the learned counsel and on their request, taken up for hearing and final disposal. Learned counsel for the Respondents waive service. 1A. The First Petitioner which is registered under the Bombay Public Trust Act, 1950 conducts a fully aided private secondary school which has classes from standards 5 to 10. Each class has one sanctioned division. For the academic year 2003-04 on the basis of the strength of the students of the school, it was anticipated that an additional division for standard 8 would become admissible with the corresponding addition of one full time post and one part-time post of 2 Assistant Teacher. On 13th June, 2003 the First Respondent was appointed as an Assistant Teacher on part-time basis for a temporary period of one year. The appointment of the First Respondent was made in an unaided division. At the same time another teacher by the name of Manasi Godbole was appointed as a full time teacher in the same unaided division for standard 8. The Education Officer sanctioned the staff schedule for the academic years 2003-04 and 2004-05 by which one full time and one part-time post was sanctioned in the unaided division for standard 8 in the trained graduate pay scale. 2. In February 2005 the Headmaster in the aided division retired from service. Upon this the senior most Assistant Teacher was promoted to that post. Manasi Godbole was transferred from the unaided to the aided section in the post which had fallen vacant in the aided section. Upon the transfer of Manasi Godbole from an unaided full time post to the aided section, the First Respondent was appointed as a full time teacher in the unaided division on 29th January, 2007. The appointment of the First Respondent was on a temporary basis for a period of eleven months from 13 June, 2006 to 3 30th April, 2007. 3. On 3rd April, 2007 the managing committee passed a resolution for the discontinuation of the services of the First Respondent. On 14th April, 2007 the managing trustee authorized the Headmistress to issue a letter of termination following which on 26th April, 2007 the services of the First Respondent were terminated. The First Respondent challenged the termination of his services by preferring an appeal before the School Tribunal. 4. The Petitioner has filed a written statement stating therein that the First Respondent was initially appointed as a part-time teacher in the unaided division for Standard 8 on a temporary basis for academic year 2003-04 and thereafter, as a full time teacher in the unaided division for academic year 2006-07. During the pendency of the appeal, the Education Officer issued an order dated 14th August, 2007 sanctioning the staff schedule for 2005-06. No post was sanctioned in the unaided division. The contention of the Petitioners was that the First Respondent was appointed on a temporary basis as 4 a full time teacher in the unaided division and the division itself has since been abolished. It has been stated in paragraph 11 of the Petition that the order of the Education Officer dated 14th August, 2007 was produced before the School Tribunal. 5. By its judgment dated 23rd November, 2007 the Tribunal allowed the appeal and directed the Petitioners to reinstate the First Respondent on the post of Assistant Teacher with backwages and continuity of service. 6. On behalf of the Petitioners it has been submitted that the Tribunal proceeded on the basis that the First Respondent was appointed as a probationer and that the termination was illegal on the ground that the provisions of Section 5(3) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 had not been complied with. Learned counsel submitted that both the orders of appointment – initially as a part-time teacher for academic year 2003-04 and subsequently as a full time teacher for academic year 2006-07 - make it clear that the appointment was 5 purely temporary. Hence, it was submitted that the basis and foundation of the order of the Tribunal is incorrect. The First Respondent was employed purely on a temporary capacity and on the completion of the tenure of her appointment, the First Respondent would have no right to continue to remain in service. 7. The Tribunal has proceeded on the basis that the appointment of the First Respondent was as a probationer. This is evident from the judgment of the Division Bench in Progressive Education Society v. Nitin Krishnarao Nimbalkar1 which has been relied upon by the Tribunal in support of the proposition that the services of a probationer can only be dispensed with by complying with the provisions of Section 5(3). The error in the finding of the Tribunal ex facie lies in the fact that the appointment of the First Respondent was not as a probationer but, purely on a temporary basis initially as a part-time teacher and subsequently as a full time teacher. The appointment of the First Respondent not being as a probationer, the Tribunal was clearly in error in holding that the termination was vitiated for failure to comply with the provisions of 1 2006 (6) Bom. C.R. 165. 6 Section 5(3). 8. However, in the course of the submissions in these proceedings, counsel appearing for the First Respondent submitted that it would be appropriate and proper to remand the proceedings back to the Tribunal inasmuch as the contention of the First Respondent is that the person who has verified the Petition and who contested the proceedings before the Tribunal had no authority to do so. The learned counsel submitted that the aforesaid person had no authority to authorize the termination of the services of the First Respondent. With the assistance of the learned counsel, the grounds in the memo of appeal before the Tribunal have been perused. Save and except for an averment that the order of termination which was issued by the Headmistress is illegal, absolutely no ground has been raised in order to challenge the authority of the managing trustee. In fact even before this Court what has been stated in the reply is that a person by the name of Mangala Bhure had filed her written statement before the Tribunal contesting the authority of the managing trustee. In the rejoinder that has been filed in these proceedings the Petitioner 7 has placed on the record the relevant extract from the public trust register in support of his submission that he continues to be a trustee of the institution. But that apart, it is evident that the First Respondent has not squarely raised either in the memo of appeal or in the submission before the Tribunal the question as to whether the termination of her services was at the behest of a person duly authorized to do so. No such submission has been recorded in the order of the Tribunal and the only point which was canvassed before the Tribunal was on the foundation that the First Respondent was a probationer. That as already noted in the earlier part of this judgment is factually incorrect since the First Respondent was never appointed in a probationary capacity. In these circumstances, the prayer for remand is clearly misconceived. 9. For all these reasons, the impugned judgment and order of the Tribunal which proceeded on the basis that the First Respondent was a probationer and that the termination was consequently in violation of the provisions of Section 5(3) is unsustainable. The Appeal filed by the First Respondent was misconceived and should 8 have been dismissed by the Tribunal. The Petition shall accordingly have to be allowed and is accordingly allowed. The order of the Presiding Officer of the School Tribunal dated 23rd November, 2007 is set aside and Appeal 44 of 2007 shall stand dismissed. The Petition shall stand disposed of in the aforesaid terms. There shall be no order as to costs. *****