( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 4865 OF 2006 1. President, Samata Shikshan Samittee, Jalna, Dham Deep Sangh, Jalna, in State of Maharashtra, c/o Dr. Babasaheb Ambedkar Vidyalaya, Jalna, Taluka and district Jalna. 2. Secretary, Samata Shikshan Samittee, Jalna, Dham Deep Sangh, Jalna, in State of Maharashtra, c/o Dr. Babasaheb Ambedkar Vidyalaya, Jalna, Tq. And Dist. Jalna. 3. Head Master, Dr. Babasaheb Ambedkar Vidyalaya, Jalna, Tq. & Dist. Jalna. PETITIONERS VERSUS 1. Madhav s/o Yadavrao Dhotre, R/o Navabhai Building in front of Dr. Sajeed Modikhana, Jalna, District Jalna. 2. The Education Officer (Secondary), Zilla Parishad, Jalna, Dist. Jalna. RESPONDENTS ..... Mr. A.M. Dabir, advocate for the petitioners. Mr. R.D. Mane, advocate for respondent No.1. Mr. D.V. Tele, A.G.P. for respondent No. 2. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 17th July, 2009] ( 2 ) ORAL JUDGEMENT : 1. The petitioners have invoked jurisdiction of this Court under Articles 226 and 227 of the Constitution of India for seeking appropriate reliefs in the matter of termination of the respondent No. 1. The petitioners impugn judgement and order rendered by the learned Presiding Officer of the School Tribunal, Aurangabad, in appeal No. 45/2005 whereby and whereunder the respondent No. 1 was directed to be reinstated on the post of Assistant Teacher in the petitioner’s school with continuity in service and full back wages alongwith other consequential benefits. 2. Shorn of unessentials, the case of the respondent No. 1 is that he is B.A., B.P.Ed. and B.Ed. And duly qualified for appointment as Assistant Teacher. He is member of Scheduled Caste. He was appointed by the petitioners vide order dated 21-06-2001 as Assistant Teacher on a post reserved for the Scheduled Tribe category. His appointment was on probation for period ( 3 ) between 21-06-2001 to 21-06-2003. He was not furnished the appointment order as such when the first appointment was made. He was directed to work in secondary school run by the petitioners under name and style “Dr. Babasaheb Ambedkar Vidyalaya, Jalna”. He continuously worked as Assistant Teacher in the said school. He was again interviewed on basis of his application and was selected to work further. He was given appointment order dated 01-08-2003 and was directed to work on probation for two years between 01-08-2003 to 31-07-2005. He joined the duty as Assistant Teacher on 01-08-2003 and continued to work satisfactorily. The Management and the petitioner lateron published an advertisement dated 21-06-2005 in a daily newspaper “Lokmat” for filling up posts of Assistant Teacher and other non-teaching staff members. He attended the interview at the behest of the petitioners. He was not allowed to sign the muster roll on 16-06-2005 after re- opening of the school. He was informed by the Head Master of the school that his services were terminated. Consequently, he filed appeal No. 45/2005 in the School Tribunal. ( 4 ) 3. The petitioners resisted the appeal proceedings mainly on the ground that the respondent No. 1 was not appointed on a clear and vacant post w.e.f. 21-06-2001 to 21-06-2003. They denied that he had worked continuously for period of two (2) years during the first tenure commencing from 21-06-2001. They asserted that the respondent No. 1 was allowed to work as Assistant Teacher because he desired to get experience and moreover the school being unaided, it was necessary for the petitioners to save the funds on salary account. They submitted that the respondent No. 1 was appointed by order dated 01-08-2003 on temporary post for couple of years and for a limited period. They contended that the respondent No. 1 was not terminated as such, but due to completion of the fixed tenure, he no more was entitled to seek continuity of service as Assistant Teacher. They submitted that the respondent No. 1 was not entitled to claim reinstatement. 4. The Education Officer, however, contended that necessary approval was granted to the post of the ( 5 ) respondent No. 1 during probation period of two (2) years w.e.f. 01-08-2003. He also submitted that the Management of the petitioners did not forward proposal for further approval after the relevant period of two (2) years and, therefore, no approval was given for the service of the respondent No. 1 after 30-04-2005. 5. The learned Presiding Officer of the School Tribunal considered the relevant material placed on record and held that the respondent No. 1 was appointed on probation w.e.f. 01-08-2003 for two (2) years’ period. The learned Presiding Officer further held that the appointment of the respondent No. 1 was on vacant and permanent post and, therefore, he was entitled to seek reinstatement in as much as the termination was violative of section 5 (3) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short, “the MEPS Act”). The School Tribunal allowed the appeal. The respondent No. 1 is reinstated in pursuance to the impugned judgement and is now working as Assistant Teacher in the secondary school. ( 6 ) 6. Heard learned counsel for the parties. 7. At the threshold, it is pertinent to note that the respondent No. 1 is duly qualified for appointment as Assistant Teacher. There is no dispute about the fact that he is B.A. B.P.Ed. and B.Ed. There is also no dispute about the fact that he belongs to Scheduled Caste. The fact that he was appointed on 21-06-2001 to work as Assistant Teacher is rather uncontroverted though nature of such appointment is subject matter of dispute. The contention of the petitioners is that the respondent No. 1 wanted to earn experience and as such, was temporarily appointed w.e.f. 21-06-2001. 8. The respondent No. 1 asserted that from 21-06-2001 till 21-06-2003, he attended the school as Assistant Teacher and his signatures were taken on the muster roll maintained by the petitioners. There is no denial to such averment in the written statement of the petitioners. On perusal of the record, it is conspicuous that the name of the respondent NO. 1 was ( 7 ) shown in the seniority list maintained by the petitioners. The date of his first appointment in the educational institution is shown as 21-06-2001 and his seniority position is shown at serial No. 9. There is no dispute about the fact that the post of Assistant Teacher was advertised on 21-06-2005 in a daily newspaper called “Lokmat”. The advertisement itself shows that the post was of permanent nature. Obviously, the initial appointment of the respondent No. 1 was on vacant and permanent post. He could not be regarded as officiating Assistant Teacher. The pleadings of the petitioners in paragraph No. 2 of the written statement may be re-produced for ready reference. It has been stated by the petitioners : “On the contrary, the petitioner came to be appointed on purely temporary post of Assistant Teacher on probation for the period of two years i.e. From 1/8/2003 to 30/4/2005.” 9. The petitioners did not clarify as to when the first appointment order was issued to the respondent No. ( 8 ) 1. Though it is an admitted fact that he was appointed and commenced to work as Assistant Teacher w.e.f. 21-06-2001, and his seniority position is shown at serial No. 9 in the seniority list, yet, there is no documentary evidence about the nature of his appointment for the relevant period of two (2) years commencing from 21-06-2001. It appears from the extracts of the pay- bills that monthly pay of the respondent No. 1 was drawn by the petitioners after his appointment for the second term. The school was non-aided at the relevant time. 10. Mr. Dabir would submit that the temporary appointment of the respondent No. 1 would not give him any legal right to claim continuation because it was fixed period appointment. He would submit that the respondent No. 1 was well aware about the nature of his appointment and, therefore, after the period of two (2) years was over, he attended interviews in pursuance to the advertisement for the post. Mr. Dabir would further submit that if the respondent No. 1 was, in fact, regularly appointed on the post of Assistant Teacher, there was no need for him to attend the walk-in- ( 9 ) interview. He contended that because the respondent No. 1 was not selected by the Selection Committee of the petitioners in the interviews held on 21-06-2005, the appeal was preferred with several inaccurate statements. He contended that considering the nature of appointment and the manner in which the services of the respondent No. 1 came to an end, the Tribunal ought not to have allowed the appeal and hence, interference of this Court is warranted. 11. What transpires from the record is that respondent No. 1 submitted an application on 23-06-2005 to the effect that he was willing to serve in the secondary school further. He stated in the application that he had served for four (4) years between 21-06-2001 to 31-05-2005 and may be given opportunity to continuously serve further. On this application, the petitioner No. 3 (Head Master) scribed an endorsement. The translation of the endorsement, which is in Marathi script, is broadly as follows : “Application is received. Your probation ( 10 ) period is completed, in the new batch, students strength is less. Likewise other teachers, you should increase the strength of the students (boys), thereafter, you will be considered.” 12. It appears from the record that the school teachers were asked to make efforts so as to increase strength of the students. What transpires from the record is that a meeting was called in order to urge the school teachers to make endeavour to enhance strength of students in the secondary school. The respondent No. 1 did not attend such meeting. It further appears from the record that the initial appointment of the respondent No. 1 could be at his own request and may be even on gratuitous basis because the school was non- aided. Still, however, the subsequent appointment for period of two (2) years commencing from 01-08-2003 was on regular post. There was vacant post available at that time. It is clearly established that the respondent No. 1 was a probationer during the relevant period. His appointment to the post was approved by the ( 11 ) Education Officer during the relevant period. 13. Once it is noticed that the appointment of the respondent No. 1 as Assistant Teacher was on a vacant post and he was probationer, then it follows that his services could not be terminated without following due procedure as envisaged in section 5 (3) of the MEPS Act. The respondent No. 1 acquired status of confirmed school teacher due to deemed effect available under sub-section 2 of section 5 of the MEPS Act. A Division Bench of this Court in “Lalitha Thupti v. C.B. Karkhanis, Presiding Officer, School Tribunal, Bombay and others” 1998 (1) Mah.L.R. 235, held that the Assistant Teacher who has continued to work for two years would be entitled to benefit of deemed confirmation of status as permanent employee in view of section 5 (1) and (2) of the MEPS Act. The Division Bench further observed that services of such Assistant Teacher need not be terminated even though the appointment on reserved post which reservation could be carried forward. The artificial break in the service is also of no avail in ( 12 ) such a case. The Division Bench held that the probationer cannot be terminated on basis of artificial breaks emanating from the orders of appointment. 14. In “Anil Dattatraya Ade v. P.O. and others” 2003 (4) Mh.L.J. 866, a Division Bench of this Court held that an employee who is appointed on permanent vacancy on probation would acquire status of permanency automatically without any specific confirmation order, after completion of the two (2) years’ period. The legal position is further explicit in view of “Hareshwar Shikshan Prasarak Mandal & another v. Rajashree Sarjerao Lokhande and others” 2007 (2) Bom.C.R. 201. In “Hareshwar Shikshan Prasarak Mandal” (supra), this Court held that after completion of probation of two (2) years’ period, an incumbent would be deemed to have been confirmed if the appointment is on permanent post. It need not be reiterated that the post was of a permanent nature in as much as the same was again advertised in the month of June, 2005. There is substance in the contention of the respondent No. 1 that he was required ( 13 ) to undergo the process of interview at the instance of the petitioners. One cannot be oblivious of the plight of the school teachers who are some times at the mercy of the Management due to precarious position in which they are placed. No doubt, there are also instances of the erring school teachers who try to exploit the situation. The fact remains that the respondent No. 1 continuously served in the secondary school of petitioners for period of four (4) years and was suddenly shown the exit without any reason or rhyme and without following the relevant provisions of the MEPS Act and the Rules thereunder. There was no memo issued to him. No-where, there was any complaint about dis- satisfactory performance of his duties except and save that he did not attend the meeting which was called by the Management with due to make efforts for enhancement of the strength of the students. 15. The appointment of respondent No. 1 was against a clear and permanent vacancy. In “Yogeshwar Vikas Sanstha and others v. Rajendra T. Shinde and another” ( 14 ) 2007 (6) Mh.L.J. 698, a Single Bench of this Court held that merely because the appointment order uses the word “temporary” or provides for automatic termination, it does not become a temporary appointment. It is necessary to notice the character of such an appointment. In “John Wilson Education Society’s Wilson College and another v. Shri Prakash John Ravade” (Writ Petition No. 1415/1993), a Division Bench of this Court held that where the school teacher was duly qualified and was appointed on a clear vacancy, and was allowed to work beyond period of one year of initial appointment, the termination was illegal. In “National Education Society’s High School and Junior College v. Mrs. Lulomool Monachary” 1987 (2) Bom. C.R. 521, a Single Bench of this Court held that where the appointment was in permanent vacancy, which occurred due to exit of another employee, it could not be regarded as appointment on temporary vacancy. 16. For the aforestated reasons, I do not find any substance in the petition. The impugned judgement ( 15 ) rendered by the learned Presiding Officer of the School Tribunal is quite legal and proper. No interference is called for. The learned counsel for the petitioners would submit that the respondent No. 1 was not entitled to full back wages. The back wages could be claimed by him when it is quite clear that the termination was illegal and that there is no scintilla of evidence to show that he was working as Assistant Teacher in any other school. 17. In the result, the writ petition is dismissed. No costs. 18. In view of dismissal of writ petition, civil application No. 3778 of 2009 does not survive and hence, stands dismissed accordingly. [ V.R. KINGAONKAR ] JUDGE NPJ/WP4865-06