WP/1521/1998 : 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1521 OF 1998 Shri Ashokkumar Annaso Shetti ... Petitioner V/s. The Modern Education Society & Ors. ... Respondents Mr.Niranjan Mogre for Petitioner Mr.S.D. Rayrikar, AGP, for Respondent Nos.4 & 5 CORAM: SMT.NISHITA MHATRE, J. DATE: 14.01.2011 ORAL JUDGMENT: 1. The order impugned in the Petition has been passed by the School Tribunal on 7.1.1998. The Petitioner was employed as an Assistant Teacher with the school run by Respondent No.1. According to the Petitioner, he was appointed on probation and not as a temporary employee as the order of appointment did not prescribe the period for which he was appointed. The petitioner contends that his services were terminated from the beginning of the academic year 1993-94 illegally by Respondent No.1. Aggrieved by the decision of Respondent No.1, he approached the School Tribunal by preferring an appeal u/s 9 of the The Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short, `MEPS Act'). 2. In his appeal, the petitioner has stated that he applied for appointment with Respondent No.1 pursuant to an advertisement issued in the daily newspaper. He WP/1521/1998 : 2 : claimed in his appeal memo that he had been appointed in a clear and permanent vacancy. He has also pleaded that his appointment was neither in a leave vacancy nor in a deputation vacancy and, therefore, he claimed that he had acquired the status of a probationer. He has further pleaded that he worked continuously till the end of academic year 1992-93. However, he was not permitted to resume duties from the commencement of the academic year 1993-94. 3. Respondent No.1 in its written statement contended that the petitioner was appointed on a temporary basis in a vacancy which was neither clear nor permanent. It is further pleaded that on 26.5.1993, the petitioner approached the respondent for a character certificate as he wished to obtain a job with a grant in aid School as the School run by Respondent No.1 was unaided. He also sought a relieving order. Respondent No.1 has pleaded that the appeal is not tenable in view of the fact that the petitioner had sought a relieving order and, there was no termination of service in the eyes of law. 4. Certain documents were produced by Respondent No.1 indicating that the petitioner had in fact chosen to resign from the service of Respondent No.1. A letter dated 5.5.1993 from the petitioner has been placed on record in which he has requested the Respondent No.1 to issue a service certificate. The relieving order was issued on 26.5.1993 by Respondent No.2 and the service certificate was issued on 2.6.1992. 5. The appeal filed by the petitioner was dismissed. The Tribunal held that the Petitioner was not able to prove that he was appointed on probation and upheld the WP/1521/1998 : 3 : contention of Respondent No.1 that the appointment was for a temporary period. The Tribunal has also held that the petitioner was not able to establish that the services had been terminated by Respondent No.1 and observed that instead it was the petitioner who had tendered his resignation. 6. Mr.Mogre, appearing for the petitioner, submits that the order of appointment indicates that the petitioner was appointed on probation and not as a temporary employee. He draws my attention to Rule 10 of the MEPS Rules which stipulates that in case of appointment of temporary employee the appointment letter must mention the tenure of appointment. Reliance is placed on the judgment of Daga, J. in the case of Ramchandar Ramadhar Yadav v/s. Hyderabad (Sind) National Collegiate Board & anr., 2006 (5) Bom.C.R. 820 in support of this submission. It is true that it could be argued that the appointment of the Petitioner was on probation and not for a temporary period. The appointment order does not prescribe any time period for which the petitioner was appointed. Instead it mentions that he was being appointed on a temporary basis and would be made permanent in future. Applying Rule 10 in the present case, it would be obvious that the appointment was on probation. The finding of the Tribunal on this issue is erroneous and must be set aside. 7. However, the matter does not end here. The question is whether the petitioner was at all terminated from service. The Tribunal on the basis of the evidence before it has found that the petitioner had voluntarily resigned from service. Mr.Mogre submits that the petitioner had in fact not tendered his resignation at any point of time. He points out that if an employee wishes to resign, adequate notice is to be given to the management as prescribed under the aforesaid Rules. He also WP/1521/1998 : 4 : submits that in case such notice is not given by an employee he is expected to pay the salary for six months to the management. According to Mr.Mogre since neither the notice was given nor was the salary paid by the petitioner, it must be inferred that he had not tendered his resignation. He further submits that his co-employees had vouched for the fact that the petitioner had reported for duty at the commencement of the academic year 1993-94. He submits that the petitioner was informed that for technical reasons he was prevented from signing the muster roll. 8. There is no such a pleading contained in the appeal memo. The entire argument of Mr.Mogre has been made without any foundation being laid in the appeal memo. Therefore in my view, it is not possible to accept the submission of Mr.Mogre. Apart from this, the contention that the resignation has to be preceded by a notice or paying back the salary also is unsustainable inasmuch as it would always be open for the management to contend that it does not desire to insist on either the notice or the salary. In the present case there is a letter on record indicating that the petitioner had in fact sought a service certificate which was issued on 26.5.1993. In these circumstances, in my view, the Tribunal has not committed any error in concluding that the petitioner had resigned from service. 9. Accordingly, the petition is dismissed. Rule discharged. No costs.