1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION No. 4644/2009. ( Jain Sewa Samitee and another -: versus :- Shri Vivek M. Ambekar and another ) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : FEBRUARY 09, 2010. Heard finally by consent of Shri M.P. Khajanchi, learned counsel for petitioners, learned A.G.P. for respondent no.2 and Shri P.N. Shende, learned counsel for respondent no.1. Earlier the petitioner as also respondent no.1 had attempted to show that the post on which respondent no.1 was working has been abolished. Reply was therefore called from the Education Officer. Learned A.G.P. has today filed that reply pointing out that there is no vacancy for physical education teacher with the petitioner – Management. I have considered the controversy on merits. The contention that respondent no.1 needs to be declared as surplus and he can be directed to be absorbed in any other school cannot be accepted in view of the provisions of Rule 25 and Rule 26[2] of the M.E.P.S. Rules, 1981 which extends this facility only to the employees in aided school. School of 2 petitioner is unaided one. Shri Khajanchi, learned counsel has contended that respondent no.1 was never employed permanently and on probation. He was working on year to year basis and hence he had no right to post. Shri Shende, learned counsel for respondent has invited attention to the findings in this respect as recorded by the School Tribunal at page 32 and 33 of the Writ Petition. It is difficult to accept that finding of School Tribunal that appointment of present respondent no.1 is in accordance with Section 5 of the M.E.P.S. Act, 1977 is not correct. The School Tribunal has found that the only grievance of management before it was that the surplus teachers were not called for before appointment of present respondent no.1 and it was insufficient to reach a conclusion that appointment was invalid. Shri Khajanchi, learned counsel has invited attention to the stand in written statement which shows that the management contended that respondent no.1 was working in each session and was being appointed for each session. At the end of session his appointment came to end automatically and he was never continued during summer vacation. He applied again for being selected and was thereafter again appointed in next academic session. However, I find that no appointment orders are produced on record and the School Tribunal has referred to appointment order dated 13.12.1997 which shows that appointment of present respondent no.1 was on probation for a period of two years. In this situation, again no perversity can be found with the findings recorded by the School Tribunal in this 3 connection. No case is therefore, made out warranting interference in so far as the relief of reinstatement is concerned. The contention of learned counsel for petitioner that no case has been made out for grant of back wages and the school Tribunal has mechanically granted it, however, needs to be accepted. Respondent no.1 has not pleaded absence of gainful employment and has not specifically filed any affidavit in that respect before the School Tribunal. He is out of employment since the date of his termination i.e. 22.06.2000. In view of this position, merely because his termination is found illegal, relief of full back wages cannot be given to him, as there is absolutely no material to show absence of gainful employment. I find that respondent no.1 is not entitled to grant of any back wages. Thus the impugned judgment of School Tribunal is modified only to that extent and the direction given to petitioner in relation to payment of back wages is hereby quashed and set aside. Writ Petition is disposed of with above observations, with no order as to cost. JUDGE Rgd.