1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8025 OF 2008 Mrs. Janhavi Jayesh Gaikwad. ...Petitioner (Ori.Appellant) Vs 1. Shreerang Education Society & 3 ors. ...Respondents (Ori.Respdts.) Mr. N.V. Bandiwadekar for the petitioner. None for Respondent No.1. Mr. Mayuresh Modgi for the respondent No.2. Mr. A.P. Vanarse, AGP, for the respondent No.3. CORAM: S.J. VAZIFDAR, J. DATED : 5TH JANUARY, 2010. P.C. : 1. Rule. 2. By consent, rule is made returnable forthwith and heard finally. 2 3. The Petitioner has challenged the order dated 17th September, 2008, passed by the Presiding Officer, Additional School Tribunal, dismissing her appeal under section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. In view of the previous orders passed in the proceedings between the parties, it is not necessary to refer to the facts in detail. Suffice it to state that the Petitioner was earlier also served with an order of termination. The same was set aside by the School Tribunal by an order dated 17th April, 2007. The challenge to the same in a writ petition filed before this court was dismissed by an order and judgment dated 30th August, 2007. Thereafter, by a letter dated 30th January, 2008, the Petitioner’s services were once again terminated. Pausing here, it may be noted that the period of probation in respect of the Petitioner was to be completed on 22nd February, 2008. The School Tribunal, by an order dated 27th March, 2008, dismissed the Petitioner’s appeal against the order of termination dated 30th January, 2008. The Petitioner filed Writ Petition No.3800 of 2008 against the said order. By an order and judgment dated 23rd July, 2008, the order of the School Tribunal was 3 set aside and the matter was remanded. It is in these circumstances that the impugned order was passed. The impugned order is liable to be set aside on two grounds which relate to the decision making process itself. 4. Firstly, there is nothing on record which indicates that while passing the order of termination dated 30th January, 2008, the Respondents considered the Petitioner’s performance for the period subsequent to the period June 2006 to April 2007. The confidential record on the basis whereof the impugned action had been taken by the Respondents and the impugned order was only for the period June 2006 to April 2007. Although the letter of termination refers to the Petitioner’s conduct thereafter, the confidential report in respect of the subsequent period is not reflected in the order of termination or in the impugned order. Under Rule 15(6) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, the performance of an employee appointed on probation is to be objectively assessed by the head “during the period of his probation”. The same not having been done, the decision making process by the Respondents itself was faulty. 4 5. Secondly, the impugned order states that there is no evidence on record to show that the appellant had taken efforts to get expunged the remarks from the confidential report dated 30th July, 2007 (wrongly mentioned as 31st July, 2007). In fact, a representation was made by the Petitioner by her letter dated 3rd August, 2007. The same was not considered by the School Tribunal. 6. In view of the Respondents not having considered the confidential record for the subsequent period before terminating the Petitioner’s services, it is not necessary to remand the matter. That would serve no purpose. In the first instance, it is for the Respondents to take an informed decision after considering the relevant material especially the performance of the Petitioner during the entire period of her probation. 7. In the circumstances, the Rule is made absolute in terms of prayer (b) and (c). The order of termination dated 30th January, 2008, is, therefore, set aside. It is, however, clarified that the directions sought in prayer (c) for reinstatement and for consequential benefits 5 shall not come into effect for a period of eight weeks from today. In the meantime, it would be open to the Respondents to take action in accordance with law.