-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6478 OF 2001 Rajendra Kashinath Kamble ) age 26 years, occupation service, ) residing at and post Dholwad, Tal. Junnar, Dist. Pune. )..Petitioner versus 1. State of Maharashtra ) 2. Education Officer (Secondary) ) Zilla Parishad, Pune. ) 3. Gram Shikshan Seva Mandal, ) C/o Shivneri Vidyalaya, ) At & Post Dholwad, Taluka Junnar, Dist. Pune ) 4. The Headmaster, ) Shivneri Vidyalaya, At and Post Dholwad, ) Taluka Junnar, Dist. Pune. )..Respondents Mr. A.M. Joshi for the petitioner. Mr. A.I. Patel, AGP, for respondent Nos. 1 and 2. CORAM: P.B. MAJMUDAR, J. DATE: AUGUST 05, 2008. ORAL JUDGMENT By filing this petition, the petitioner has challenged the order dated 31st October, 2000, passed by the Presiding Officer, School Tribunal, Pune Region, Pune, in Appeal No. 26 of 1999. 2. The petitioner was appointed as an Assistant Teacher in the institution run by respondent No.3. The petitioner was initially appointed as an Assistant Teacher with effect from 7th August, 1997. However, no -2- appointment order was issued to him. On 17th September, 1998, he was issued an appointment order appointing him on a probation for two years. The petitioner was appointed in a post reserved Backward Class as he belongs to Scheduled Caste category. It is the case of the petitioner that at the end of academic year 1997-98, the management demanded certain amount from him towards donation and he having failed to make such payment, he was asked to submit his resignation letter dated 1st May, 1998 by force. The petitioner thereafter made a complaint to the Education Officer. Thereafter the Education officer has asked the management to continue the petitioner in service disregarding the resignation. The petitioner was thereafter permitted to resume duties. It is the case of the petitioner that by an order dated 30th March, 1999, his services came to be terminated. The said order of termination was challenged by the petitioner before the Tribunal. 3. The management resisted the said application by filing reply at Exhibit-7. Before the Tribunal it was the case of the management that the petitioner was initially appointed with effect from 7th March, 1997. However, he did not accept the said appointment order on the ground that he was likely to get appointment in another school nearer to his home town. The management has also denied the allegation of the petitioner that any amount was claimed from him towards donation. According to the respondents, the services of the petitioner were not satisfactory and the petitioner on his own -3- tendered resignation on 30th April, 1998. It is the case of the management that a superior Officer assessed the performance of the petitioner during his probationary period. That record has also been maintained for such objective assessment. The attention of the petitioner was drawn about the shortfall in his performance and on that the petitioner started making false allegations against the management. It is also the case of the management that even though petitioner did not attend the duty between 8th June, 1998 and 18th June,1998, he had signed the muster roll for the said period. It is the case of the management that the work and behaviour of the petitioner was not satisfactory and on that ground his services were terminated. The Tribunal, after considering the rival submissions and/or considering the evidence came to the conclusion that under sub-section (3) of Section 5 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter “the Act”), the management can terminate the services of the probationer, if the management is of the opinion that the work or behaviour of the probationer at any time during the period of probation was not satisfactory. The Tribunal found that the order of termination cannot be said to be a stigmatic order. The Tribunal accordingly dismissed the appeal which order is impugned in the present petition at the instance of the petitioner. 4. Mr. Joshi, learned counsel for the petitioner, submitted that under Rule 15 of the Maharashtra Employees of Private Schools (Conditions of -4- Service) Rules, 1981 (hereinafter “the Rules”), the management is required to assess the performance of an employee in an objective manner. It is submitted that even though such assessment is made by the management, the adverse entries have not been communicated to the petitioner. In this behalf, the learned counsel has placed reliance on the decision of the Supreme Court in the case of Progressive Education Society and another vs. Rajendra and another, (2008) 3 SCC 310. In the said judgment, the Supreme Court while construing the provisions of the Act has held as under:- “The facts of this case are a little different from the normal cases relating to probation and the termination of the services of a probationer in that the satisfaction required to be arrived at under sub-section (3) of Section 5 of the MEPS Act has to be read along with Rule 15 of the MEPS Rules, 1981 with particular reference to sub-rule (6) which provides that the performance of an employee appointed on probation is to be objectively assessed by the Head during the period of his probation and a record of such assessment is to be maintained. If the two provisions are read together, it would mean that before taking recourse to the powers vested under sub-section (3) of Section 5 of the MEPS Act, the performance of an employee appointed on probation would have to be taken into consideration by the school management before terminating his services” The Supreme Court has further held that in case of termination of services of a probationer on the ground of unsatisfactory performance, assessment of probationer has to be made by the assessing authority itself. However, the appointing authority is not required to give any explanation or reason for terminating services except informing him that his services have been found to be unsatisfactory. The Supreme Court has further observes in the said case that the confidential report which has been produced on behalf of the -5- school management does not inspire confidence on account of different dates which appear both in Part I and Part II of the said report. The documents are not above suspicion. Requirements of Rule 15 (6) and Rule 14 had not been complied with prior to invocation by the School Management of the powers under Section 5 (3) of the Act. 5. In the instant case, so far as the question about the objective assessment is concerned, the learned counsel has also fairly submitted that the objective assessment has been made and record to that effect is maintained by the institution. In this connection, the learned Assistant Government Pleader has also pointed out that as per the service record of the petitioner, which is at page 40, it is found that the petitioner was not found fit to be a teacher. He has disobeyed the orders of his superiors on many occasions. He has not shown any interest in improving the standard of education in the school. Record has been maintained and signed by the head under whom the petitioner is working. The reviewing authority has also signed the same. Necessary documents regarding service record of the petitioner have been produced on the basis of which performance of the petitioner has been assessed and ultimately it has been found by the management that the petitioner's work is not at all satisfactory during the probationary period. As pointed out above, as per Rule 15 (6), the management is required to assess the service record of the petitioner objectively. Such record is already maintained wherein the shortcomings -6- have also been pointed out in connection with the service of the petitioner. It is not in dispute that the petitioner was on probation and, therefore, it was not necessary that adverse entries were required to be communicated to him unlike in the case of regular employees. The management has kept the service record and assessed the caliber of the petitioner and noted the drawbacks. Memos were issued to him from time to time. Ultimately having been satisfied that the performance of the petitioner is not satisfactory, his services have been terminated. Under these circumstances, it cannot be said that the management has acted arbitrarily as ultimately it is for the management to assess the caliber of a teacher from the service record of an employee and such subjective satisfaction, therefore, cannot be a subject matter of review. This Court is required to find out whether the management has rightly arrived at such a satisfaction especially when the management has followed the requirement as per Rule 15 and has maintained the record and objectively assessed the performance of the petitioner when he was on probation. The Tribunal after considering the records which were produced has found that no fault can be found with the act of the management for coming to the conclusion that the performance of the petitioner was not satisfactory during the probationary period and on the basis of Section 5 (3) read with Rule 15 (6) the management has found that the petitioner is not suitable for the post as his performance during the period of probation was not satisfactory. The finding of fact arrived at by the Tribunal, in my view, cannot be said to be unreasonable and considering the -7- the said fact that while exercising the extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India this Court would not like to disturb the said finding of the Tribunal. Even as per the service record produced along with the petition, it is clear that the management has maintained the record and has assessed the performance of the petitioner objectively and even shortcomings were brought to his notice in the form of memo. Considering the said aspect, I do not find any substance in this petition and it cannot be said that the Tribunal has committed any error of law which is required to be corrected by this Court in this petition. Since there is no substance in the petition, the same is dismissed. Rule is discharged. P.B. MAJMUDAR, J.