1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 5296 OF 1996 1. Mohmadiya Education Society, C/o. Shri. Shaikh Abdul Salam Abdul Aziz, Masumiya Urdu D.Ed. College, Opp. Municipal Fiar Brid, Ahmednagar. 2. Shri. Shaikh Abdul Salam Abdul Aziz, Age 42 yrs., Occu. Service, Secretary - Mohmediya Education Society, 25, Bagroja Hudco Colony, Near Delhi Gate, Ahmednagar. 3. Smt. Shaikh Nishet Rafiq, Age 35 yrs., Occu. Service, Occu. Head Mistress, Moulana Azad Urdu Girls High School, Mukund Nagar, Ahmednagar. ....Petitioners. Versus 1. Kum. Rijwana d/o. Babasaheb Shaikh, Age 26 yrs., Occu. Nil, R/o. 39, Bagroja, Hudco Colony, Delhi Gate, Ahmednagar-414001. 2. The Presiding Officer, School Tribunal, Pune Region, Pune, Dist. Pune. ....Respondents. Shri. A.B. Gatne, Advocate for the petitioners. Shri. G.B. Rajale, Advocate for the respondent No.1. CORAM : R.K. DESHPANDE, J. DATE : 10th November, 2009 2 ORAL JUDGMENT : 1. This petition has been preferred by the management, challenging the judgment and order dated 8th of July 1996 passed by the learned Presiding Officer, School Tribunal, Pune Region, Pune in appeal No. 131/1993 wherein the appeal filed by the respondent No. 1 has been allowed, the order dated 30.3.1993, terminating the service of respondent No. 1 with effect from 30.3.1993, has been set aside and the respondent No. 1 is directed to be reinstated in the service. At the time of admission of the matter, this Court granted interim relief in terms of prayer clause "C" of the petition. As a result, the effect and operation of the judgment and order passed by the Tribunal is stayed and the respondent is not in employment. 2. The respondent No. 1 filed an appeal No. 131/1993, challenging the order of termination dated 30.3.1993. The respondent in her appeal claimed the relief of reinstatement and backwages as an Assistant Teacher. It was the case of the respondent that although the order of appointment indicated that she was appointed as Laboratory Assistant, she was actually performing the job of Assistant Teacher and therefore, she claimed the relief of reinstatement and backwages as an Assistant Teacher. She alleged that she was appointed on 10.6.1991 in a clear and permanent vacancy and had completed a period of probation, and ultimately, acquired the status of deemed permanent employee, in 3 terms of section 5 (2) of the of Maharashtra Employees of Private Schools Regulation Act,1977. 3. The petitioner management filed written statement opposing the claim of the petitioner. The petitioner management denied that the respondent No. 1 was appointed as an Assistant Teacher. The management relied upon the order of appointment dated 10.6.1992 appointing the respondent No. 1 as Laboratory Assistant Assistant for the period form 13.6.1992 to 30.4.1993 on ad-hoc basis. It was further the stand of the management that the appointment was made purely temporary as stop gap arrangement and after the school was brought in grant in aid, an advertisement was issued on 12.5.1993 inviting the applications for the post of Laboratory Assistant. The management has taken a stand that one another person was appointed as Laboratory Assistant with effect from 14.6.1993 by way of promotion to the post of Laboratory Assistant. According to the management, the appointment of the respondent was not as per the provisions of section 5 (2) of M.E.P.S. Act. 4. The Tribunal has held that from the reading of the order of termination, it was clear that the appointment of the respondent No. 1 was to the post of Laboratory Assistant and not as an Assistant Teacher, as alleged by her. It was further recorded a finding that no material was placed on record by the respondent No. 1 to substantiate her allegations 4 that she has worked as an Assistant Teacher and not as a Laboratory Assistant. The Tribunal, however, held that her appointment as Laboratory Assistant was in a clear vacancy and the reason given in the order of appointment, that she was appointed purely on temporary basis, was unjustifiable. It was held that the termination of the respondent No. 1 on the ground that she was appointed on temporary basis was improper. 4. Shri. Gatne, the learned counsel appearing for the petitioner, has invited my attention to the order of appointment dated 10.6.1992 as well as the approval granted by the Education Officer by an order dated 29.10.1993 and the order of termination dated 30.3.1993 and has urged that the appointment was for fixed period on purely temporary basis by way of stop gap arrangement, which did not confer any right on the respondent employee. He has further urged that the appointment of respondent employee was not in the manner prescribed as contemplated under section 5(1) of the said Act and therefore, even assuming, but not admitting that it was a clear vacancy, the Tribunal erred in holding that the appointment was not on temporary basis. 5. Shri. G.B. Rajale, the learned counsel appearing for the respondent No. 1, opposed the instant writ petition and has urged that the Tribunal has rightly held that the vacancy was clear. He has further contended that the material placed on record shows that the 5 management has taken a stand that the services of the respondent were not found to be satisfactory and hence, the termination was effected. The appointment order itself is enough to show that the appointment was in clear vacancy and that there was no question of the appointment not being in accordance with the law. Shri. Rajale further supported the order of the Tribunal and claimed that the petition should be dismissed. 6. Perusal of the order of appointment dated 10.6.1992 indicates that the appointment was from 13.6.1992 to 30.4.1993. The order of appointment further indicates that the appointment was purely by way of stop gap arrangement. The approval granted also was only for the period from 14.6.1992 till the end of the session. At the end of session, the termination order was issued on 30.3.1993 assuming that her appointment was on temporary basis. Shri. Gatne relied upon the judgment of this Court reported in (2009) 6 Mh.L.J. 469, wherein it has been held that where the appointment of temporary employee is for a fixed period and service of such employee is terminated on expiry of such fixed period, giving notice enumerated under Rule 28(1) is not required. The authority clearly supports the proposition that service came to an end by influx of time. The order of appointment is purely on temporary basis for fixed period. It is also clear that the appointment was not made after following due procedure as contemplated under section 5 (1) of M.E.P.S. Act. In view of this, the judgment and order passed by the school tribunal cannot be sustained. 6 7. In the result, the instant writ petition is allowed. The judgment and order dated 8.7.1996 passed by the learned Presiding Officer, School Tribunal, Pune Region, Pune in Appeal No. 131/1993 is hereby quashed and set aside and the appeal filed by the respondent is dismissed with no order as to costs. [ R.K. DESHPANDE, J. ] ssc/wp5296.96