{1} wp34911 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.349 OF 2011 Shriram s/o Ramdas Jadhav, age: 41 years, Occ: At present Nil, R/o Talegaon Ghat Tanda, Post – Hatola, Tq. Ambajogai, District Beed. Petitioner Versus 1 Abhinav Shikshan Sanstha, Talegaon Ghat Tanda, Post – Hatola, Tq.Ambajogai, District Beed (Through its President). 2 The Secretary, Abhinav Shikshan Sanstha, Talegaon Ghat Tanda, Post – Hatola, Tq.Ambajogai, District Beed. 3 The Head Master, Shree Rajashri Shahu Vidyalaya, R/o Talegaon Ghat Tanda, Post – Hatola, Tq.Ambajogai, District Beed. 4 The Education Officer, (Secondary), Zilla Parishad, District Beed. 5 The State of Maharashtra, (through its Secretary, Education Department, {2} wp34911 Mantralaya, Mumbai-32. Respondents Mr. R.J.Godbole, advocate for the petitioner. Mr. P.K.Joshi, advocate for Respondents No.1 & 2. Mr.S.G.Rudrawar, advocate for Respondent No.3. Mr. K.J.Ghute-Patil, A.G.P. for Respondents No.4 & 5. CORAM : K.U.CHANDIWAL, J. Reserved on : 05 th December, 2011 Pronounced on: 21 st December, 2011. ORAL JUDGMENT: 1 Heard. Rule. Rule made returnable forthwith and heard finally by consent of learned Counsel for respective parties. 2 The petitioner, a teacher, is challenging the order of learned Presiding Officer, School Tribunal, Aurangabad, dated 6th August 2009, whereby the Presiding Officer did not disturb the orders of Respondent-Management dated 1st May, 2002 and 29th August, 2002 (of termination). 3 The petitioner is M.A.,B.P.Ed., qualified to be appointed as a Physical Education teacher. He fits in the bracket of a ‘trained teacher’ as per Rule – 2(k) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (referred as, ‘M.E.P.S. Rules’). Pursuant to an advertisement for a Physical Education teacher, dated 5th July, 2000, reserved for NT {3} wp34911 candidate for a period of two years on probation. Petitioner had applied, appeared in interview and he was selected for the said post. However, he says that there was no written appointment order served on him. He claims, his signatures were taken on few blank papers and also on blank appointment order including a Hamipatra, without supplying copy thereof. The petitioner worked as a teacher from 10.07.2000 till he was terminated. 4 The learned Counsel for the petitioner submits that by virtue of Government Circular dated 6th August, 1992, issued by the Director of Education, inter alia informing to accord approval to the appointments of teachers appointed on probation by the School Management for two years, if the vacancy in question is of a permanent nature. The grievance of the petitioner is, Respondents No.1 & 2 desired to accommodate their relative against the post enjoyed by the petitioner, and consequently, without issuing one month’s notice, terminated petitioner’s services by order dated 1st May, 2002 effective from 2nd May, 2002, without following due process of law, as contemplated under Rules 36 and 37 of the M.E.P.S. Rules. His submissions/representations were not heard. 5 An advertisement appeared in the News Paper gave shock to petitioner, and consequently he approached the Management, however, he was asked to appear in the interview dated 26th June, 2002. But, by way of abundant precaution, on {4} wp34911 21.06.2002, he addressed a letter to the Respondent No.2- Secretary and conveyed that he has not waived his right against the advertised post and being directed, attended the interview. The petitioner has also put up his grievance before the Education Officer by letter dated 15.07.2002 and informed that he has served the Institute for two years and without assigning reasons, he has been terminated. Learned Counsel submits that appointment of the petitioner was on probation for a period of two years. He was appointed by virtue of a post which was advertised against a clear vacancy and the Management has unauthorisedly and illegally terminated his services. 6 Mr.Joshi, learned Counsel for the Respondent- Management, submits that it is not a case of completion of two years on probation. From the record, the petitioner was appointed as an Assistant teacher for limited period i.e. 10.07.2000 to 30.04.2001 and 30.06.2001 to 30.04.2002. The question of deeming permanency in terms of Section 5(2) of the M.E.P.S. Act does not arise. The order of termination is not stigmatic. The petition raise disputed questions of fact and the allegations are not established. He denied of any vindictive approach of the Management. 7 Both the learned Counsel have placed reliance to the judgment in the matter of Priyadarshini Education Trust & {5} wp34911 others Vs. Ratis (Rafia) Bano d/o Abdul Rasheed & others, reported in 2007 (6) Mh.L.J. 667. Mr.Godbole, learned Counsel for the petitioner, relied to the judgment of the Supreme Court in the matter of Progressive Education Society & another Vs. Rajendra and another, reported in AIR 2008 SC 1442; and in the matter of Jarnail Singh & others Vs. State of Punjab & others, reported in AIR 1986 SC 1626, relating to appointment on ad hoc basis, wherein the Honourable Supreme Court held, on facts, that the termination was by way of punishment and orders were illegal for non compliance of Article 311(2) of the Constitution of India. 8 In the matter of Priyadarshini Education Trust (supra), in paragraph 9, the Division Bench has held: “In order to claim benefit of deemed permanency, a teacher must be duly selected, he must be appointed in clear permanent vacancy, his appointment must not be for a fixed/limited period, and preferably it ought to indicate that the appointment is on probation. If and only if these conditions are fulfilled, a teacher will be able to claim deemed permanency on completion of service of two years from the date of appointment on probation or at least by an appointment {6} wp34911 fulfilling all above conditions, even though the order may not specifically indicate that he is appointed on probation.” 9 The factual details about issuance of advertisement appointing the petitioner as an Assistant teacher for the period referred above should not be in controversy, though convenient stand is flashed by the Management. The dispute creeps in, the Respondents submits, that it is a temporary appointment and will not shower permanency while the petitioner asserts, it was against a clear vacancy and he applied based on the advertisement. 10 The Management has taken diagonally different stands as to status of petitioner. It says at some place, that the petitioner was appointed as a Shikshan Sevak and not as an Assistant Teacher. In the letter, the petitioner was appointed as a Physical Education Officer, but in the letter dated 27th April 2000, he was shown to be appointed as a Shikshan Sevak for the period from 10.07.2000 to 30.04.2001. In the letter dated 29.06.2001, informing to be appointment letter, he was referred as a Shikshan Sevak, but the period shown was 30.06.2001 to 30.04.2002. By letter dated 1st May 2002, again contrary stand was taken by the Management by informing that the petitioner was appointed for one year from 15.06.2001 on temporary basis as an Assistant teacher, however, terminated, effective from 02.03.2002. {7} wp34911 11 There is nothing on behalf of the Management that the petitioner, even if was appointed for one year, he was clearly informed that it was purely a temporary appointment order. The record, illustrates, the Management has used signed letters to its benefit either to brand the petitioner as a Shikshan Sevak or as an Assistant teacher and created mess of record. The letter of appointment or the dates/period mentioned there, is at variance. The allegation, that the Management desired to accommodate one of the relations of the office bearer, generate heat to accept. This is more so, as the petitioner has been sacked without following rules. It is not that the petitioner does not possess the requisite qualification of a teacher for which the advertisement was issued and he was initially appointed. It is clear, the petitioner was appointed as an Assistant teacher by successive orders. From the circumstances, it is apparent that he was a probationer, may be the Management treated him like a temporary servant and consequently he is entitled to a protection, his services need not be terminated arbitrarily or in a punitive manner without complying the principles of natural justice. 12 The petitioner, as could be seen from record, appeared for interview. He was selected by a selection process for a permanent vacant post, it was expected of the Management to have appointed the petitioner on probation for a period of two years. {8} wp34911 The successive issuance of letters of appointment is a shadow created by the Management to avoid rigor of permanency to be benedicted upon the petitioner. The net result would be, the petitioner, thus, selected with due process and appointed on probation shall naturally enjoy the status of deemed permanency and as he has completed two years, without any stigma in discharge of duties, the termination calls for interference. 13 The order of learned Presiding Officer of the School Tribunal is altogether on different area. He did not venture to consider the manipulation of documents by the Respondent- Management, asserting the petitioner at one place to be Shikshan Sevak and then accepting him to be an Assistant teacher. The appointment letter, which the Management had, it deliberately did not transmit its copy to the petitioner. The copy of letter produced by Management before the learned Presiding Officer, again is misleading as it refers to the period from 10.07.2000 to 30.04.2001. This is contrary to the record. The Hamipatra, to which reference is given, is a manufactured letter by the Respondents dated 10.07.2000 which would not operate against the petitioner as it is not in tune with even other letters of the Respondents. The petitioner was required to sign on dotted lines, not permissible under law. The letter dated 29.06.2001 says the effective date of appointment is 30.06.2001 to 30.04.2002 while the letter of appointment says, it is 10.07.2000 to 30.04.2001. The letter of {9} wp34911 termination refers that the appointment was from 15.06.2001. The net result is, the termination issued by Respondents No.1 & 2 is contrary to the settled principles of law and the procedure under the M.E.P.S. Act and Rules. 14 In the result, Writ Petition is allowed. Consequently, the letter dated 1st May, 2002 is quashed and set aside. However, in the facts situation, since there is nothing to demonstrate that the petitioner was unemployed during the period of termination till writ, the petitioner shall not be eligible for back wages. 15 Rule is made absolute in above terms. There shall be no order as to costs. Order stayed for 8 weeks. K.U.CHANDIWAL JUDGE adb/wp34911