( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 3407 OF 2002 1. Navbharat Shikshan Sanstha, Kharosa, Tq. Ausa, Dist. Latur, through its Secretary, Shri Vithal Sambhaji Kharpade, R/o Kharosa, Tq. Ausa, Dist. Latur. 2. The Principal, Navbharat Secondary and High School, Kharosa, Tq. Ausa, Dist. Latur, PETITIONERS VERSUS 1. Dattatraya s/o Govindrao Survase, R/o Kharosa, Tq. Ausa, Dist. Latur. 2. The Deputy Director of Education, Aurangabad Region, Aurangabad. 3. Ravindra s/o Govindrao Survase, R/o Kharosa, Tq. Ausa, Dist. Latur. RESPONDENTS ..... Mr. N.P. Patil (Jamalpurkar), advocate for the petitioners. Mr. R.J. Godbole, advocate for respondent No.1. Mr. D.V. Tele, A.G.P., for respondent No. 2. Mr. A.N. Gaddime, advocate holding for Mr. V.D. Gunale, advocate for respondent No. 3. ..... WITH WRIT PETITION NO. 4440 OF 2001 ( 2 ) Ravindra s/o Govindrao Survase, Junior Lecturer in Navbharat Secondary and Higher Secondary School, Kharosa, Tq. Ausa, District Latur, R/o Ambulga, Tq. Nilanga, Dist. Latur. PETITIONER VERSUS 1. Dattatraya s/o Govindrao Survase, R/o Chalburga, Tq. Ausa, Dist. Latur. 2. Navbharat Shikshan Sanstha, Kharosa, Tq. Ausa, Dist. Latur, through its Secretary. 3. The Principal, Navbharat Secondary and Higher Secondary School, Kharosa, Tq. Ausa, Dist. Latur. 4. The Deputy Director of Education, Aurangabad Region, Aurangabad. RESPONDENTS ..... Mr. A.N. Gaddime, advocate holding for Mr. V.D. Gunale, advocate for the petitioner. Mr. R.J. Godbole, advocate for respondent No.1. Mr. N.P. Patil (Jamalpurkar), advocate for respondents No. 2 and 3. Mr. D.V. Tele, A.G.P., for respondent No. 4. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE OF JUDGEMENT RESERVED : 8th July, 2009] [DATE OF JUDGEMENT PRONOUNCED : 18th July, 2009] ( 3 ) JUDGEMENT : 1. Both the petitioners challenge part of the judgement and order dated 17-07-2001, rendered by learned Presiding Officer, School Tribunal, Aurangabad in appeal No. 180/1995 whereby and whereunder the termination of the respondent No. 1 was held as bad in law and came to be set aside but without back wages. 2. Indisputably, in the context of Writ Petition No. 3407 of 2002, the petitioner No. 1 is a registered educational Society and runs a school styled as “Navbharat Secondary and Higher Secondary School, Kharosa”. The respondent No. 1 is M.A. B.Ed. He was appointed as Junior Lecturer in the school of the petitioner No. 1 on 13-06-1994. While he was working as such, as per his case, he was asked orally to refrain from attending the duties w.e.f. 28-07-1995. 3. The respondent No. 1 asserted that he was appointed regularly on the vacant post and had worked ( 4 ) honestly as Lecturer in subject viz. Marathi. He asserted that the Secretary of the education Society had demanded Rs. 60,000/- from him for continuation of the service. He expressed inability to pay such amount. He alleged that he was orally terminated due to his refusal to budge and pay such amount to the Secretary. He further asserted that he was appointed on a permanent and vacant post which was filled in after due advertisement. He further asserted that the post was reserved for backward class and he being member of Scheduled Caste, was eligible to the said post. After his termination, the petitioners called for applications for the said post instead of allowing him to continue in service. Consequently, he challenged the oral termination order on the ground that it is violative of section 5 (2) and (3) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short, “the MEPS Act”). The petitioners alleged that the respondent No. 1 was not appointed in clear and vacant post. They contended that the respondent No. 1 urged to allow him to work as Lecturer for a short duration in order to obtain experience of ( 5 ) teaching. So, he was allowed to work on contract basis for only four (4) months. The petitioners further alleged before the School Tribunal that no appointment order was issued to the respondent No. 1. It was contended that the respondent No. 1 had stopped to attend the work since 22-10-1994 and thereafter, never turned up to work as a Lecturer. They contended that false allegations are made regarding unlawful demand of Rs. 60,000/- from the respondent No. 1 for his continuation in the service. They submitted that the post was advertised on 07-06-1995 after the respondent No. 1 had left the working and lateron, the post is filled up by appointment of one Shri R.G. Survase who is a member of backward class. They submitted that Rule 28 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (for short, “the MEPS Rules”) is not attracted in as much as the appointment of the respondent No. 1 was on contractual basis for a short duration of four (4) months. 4. The learned Presiding Officer of the School Tribunal held that the oral termination of the ( 6 ) respondent No.1’s services is illegal and does not withstand the legal tests under the MEPS Act and the MEPS Rules. Therefore, the appeal preferred by the respondent No. 1 was allowed and the termination order dated 29-07-1995 has been set aside. At the same time, the learned Presiding Officer directed that subsequent appointment of Shri R.G. Survase shall be cancelled by the Management. It is pertinent to note that the respondent No. 3 – R.G. Survase alias Suryawanshi has preferred writ petition No. 4440/2001 against the same judgement and order which is clubbed together with the present petition (W.P. No. 3407/2002). He challenges cancellation of his appointment vide the impugned judgement. 5. Heard learned counsel for the parties. 6. There is no dispute about the fact that respondent – Dattatraya is duly qualified for appointment as Lecturer in the junior college run by the petitioner – Educational Society. He is M.A. B.Ed. His case before the School Tribunal was that he was ( 7 ) appointed as lecturer on vacant post. He asserted that the petitioner – Educational Society orally terminated his services from 29-07-1995. He was simply asked not to attend the duties. He sought reliance on certificate issued by the Head Master of the Junior College (school) which indicates that from 13-06-1994 to 30-04-1995, he had worked as Junior Lecturer in Marathi on Establishment of the petitioner No. 1 – Educational Society. There is also no dispute about the fact that after alleged termination of respondent – Dattatraya, the same post was advertised on 07-06-1995. The applications were called for the post of Junior Lecturer in Marathi. 7. So far as nature of the appointment of respondent – Dattatraya is concerned, it is the contention of the petitioners that he was appointed only for period of four (4) months. It was alleged by the petitioner No. 1 – Educational Society that the appointment of respondent Dattatraya was on contract basis for period between 13-06-1994 to 22-10-1994. In this context, the petitioner No. 1 – Education Society ( 8 ) seems to have taken inconsistent pleas before the School Tribunal. In the written statement (paragraph No. 6), it is stated by the petitioner No. 1 – Educational Society as follows : “Admittedly, the appellant was appointed as Junior Lecturer for the academic year 1994-95. It was specifically stated in the appointment order of the appellant that his services will be terminated after 30-04-1995 without giving prior notice.” The clinching question is whether such initial appointment of respondent Dattatraya was for four (4) months’ period on contract basis or that he was appointed vide the appointment order for one (1) academic year i.e. 1994-95, or that his appointment was as a probationer. 8. The contention of the petitioner No. 1 – Educational Society is that since the appointment of respondent Dattatraya was upto 30-04-1995, there was no need to give him any notice of termination in as much as ( 9 ) the services came to an end by efflux of the tenure. What transpires from the record is that no appointment order was issued by the Education Society when respondent Dattatraya was initially appointed. The petitioner – Educational Society has filed a copy of the appointment letter on record. The petitioner – Educational Society has not proved that the said appointment order was issued and has been acknowledged by the respondent – Dattatraya. The appointment order is required to be acknowledged by the school teacher. It emerges from the record that copy of the appointment order was lateron filed on record though it was not actually issued and served on respondent Dattatraya. In other words, such appointment letter, even if was drawn, was kept in cold storage. The learned Presiding Officer of the School Tribunal was, therefore, right while reaching conclusion that the period of appointment of the respondent - Dattatraya could not be definitely gathered. Because no appointment order was, in fact, issued to him. Needless to say, the appointment of respondent Dattatraya was on vacant post and without a specific period as such. Thus, it is difficult to ( 10 ) believe that respondent Dattatraya was appointed for period of only four (4) months on contractual basis. Nor it can be believed that the appointment order was issued to him and the period of appointment was specified only for one (1) year. 9. Mr. N.P. Patil (Jamalpurkar) seeks to place reliance on “Mangala d/o Ananda Chowdhary v. Shreyas Shikshan Prasarak Mandal, Shreyanagar and others” 1998 (4) ALL MR 157. A Single Bench of this Court held that where the appointment was on temporary basis for fixed period, the school teacher was not entitled to notice or one month’s salary in lieu of notice under Rule 28 (1). He also invited my attention to certain observations in “Hindustan Education Society and another v. Sk. Kaleem Sk. Gulam Nabi and others” AIR 1997 S.C. 2126. The Apex Court observed that when a candidate was appointed in clear vacancy for 11 months, it was not a permanent appointment as such. In the given case, the appointment letter indicated in clear terms that the appointment was of 11 months’ period from 11-06-1992 to 10-05-1993. He ( 11 ) further seeks to rely on “Bharatiya Gramin Punarrachana Sanstha v. Vijay Kumar and others” (2002) 6 SCC 707. The Apex Court held that where the appointment was for fixed period, the deemed confirmation was not applicable as provided under section 5 (2) of the MEPS Act in such a case. Mr. N.P. Patil would further point out that when the post was again advertised after one year, respondent Dattatraya did not submit his application and, hence, the post was filled up. He contended that reinstatement of respondent – Dattatraya is improper and illegal in the given fact situation. 10. If it is conclusively established that the appointment of respondent Dattatraya was for a specified period, then it can be said that his services could be deemed as terminated due to efflux of the tenure for which the appointment was valid one. It need not be reiterated that the petitioner No. 1 – Educational Society adopted inconsistent pleas. First, it was pleaded that the appointment was only for four (4) months and on contractual basis and lateron, it was ( 12 ) submitted that the appointment was only for one academic year as per the order issued. The facts obtained in the present case go to show that no appointment order was ever issued and served on respondent Dattatraya. 11. The original order of appointment dated 13-06-1994 is placed on record by Mr. N.P. Patil. It bears signature of the Secretary, but it does not bear acknowledgement and signature of respondent Dattatraya. The appointment order dated 13-06-1994 shows that he was appointed in pursuance to his application. It is more probable that the appointment order dated 13-06-1994 was drawn subsequently and was kept in office of the petitioner Educational Society for convenient use thereof as and when required. The appointment of respondent Dattatraya was against a clear and permanent vacancy. In “Yogeshwar Vikas Sanstha and others v. Rajendra T. Shinde and another” 2007 (6) Mh.L.J. 698, a Single Bench of this Court held that merely because the appointment order uses the word “temporary” or provides for automatic termination, it does not become a ( 13 ) temporary appointment. It is necessary to notice the character of such an appointment. In “John Wilson Education Society’s Wilson College and another v. Shri Prakash John Ravade” (Writ Petition No. 1415/1993), a Division Bench of this Court held that where the school teacher was duly qualified and was appointed on a clear vacancy, and was allowed to work beyond period of one year of initial appointment, the termination was illegal. In “National Education Society’s High School and Junior College v. Mrs. Lulomool Monachary” 1987 (2)Bom.C.R. 521, a Single Bench of this Court held that where the appointment was in permanent vacancy, which occurred due to exit of another employee, it could not be regarded as appointment on temporary vacancy. 12. The petitioner No. 1 – Educational Society failed to prove that the appointment of respondent – Dattatraya was of temporary nature and only for fixed tenure. It is explicit, therefore, that he was appointed on the vacant post and was working as such. It will have to be inferred, therefore, that he was on ( 14 ) probation during the relevant period. One cannot be oblivious of the fact that the practice is adopted by the Educational Societies like the present one to issue appointment letter only for one year period though the post is vacant. In case of clear vacancy, the appointment ought to be, normally, for probation period of two (2) years. The fixed term appointment may be permissible in case of contingency arising out of administrative difficulties like creation of leave vacancy, non-approval for creation of post, contemplated result of disciplinary inquiry so on and so forth. 13. Once it is found that the appointment of the respondent – Dattatraya was not for a fixed term, then it follows that his termination is violative of Rule 28 (2) of the MEPS Rules. The learned Presiding Officer of the School Tribunal appropriately dealt with the issue regarding the legality of termination of the respondent – Dattatraya. The learned Presiding Officer, however, committed patent error while directing cancellation of the appointment order issued to respondent No. 3- Ravindra. That was not the subject matter of ( 15 ) challenge. It is for the Educational Society to take appropriate action. If respondent No. 3 – Ravindra is appointed illegally, then the petitioner No. 1 - Educational Society will have to bear with the financial burden of the salary payable to him. The petitioner No. 1 - Educational Society may issue termination order to the respondent No.3 – Ravindra or may continue him in service. That subject is not concerned with the reinstatement of respondent – Dattatraya. 14. For the reasons aforestated, the Writ Petition No. 3407/2002 is dismissed and Writ Petition No. 4440/2001 is partly allowed. The impugned order to the extent of paragraph No. 3 of the final order rendered by the School Tribunal is modified and the said portion whereby the order of appointment of petitioner Ravindra is cancelled, may be deemed as quashed. Both the petitions are accordingly disposed of. No costs. [ V.R. KINGAONKAR ] JUDGE NPJ/WP3407-02-4440-01 ( 16 )