1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR Letters Patent Appeal No. 96 of 2009 IN Writ Petition No. 3874 of 2008 [decided] [Khwaja Baba Urdu Education Society & another Vs. Education Officer (Second.), ZP, Amravati & another] Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. A. Parchure, Adv., for the appellants. Mr. Mandpe, AGP for respondent no.1. Mr. M.M. Sudame, Adv., for respondent no.2. ----- CORAM : B.P. DHARMADHIKARI AND F.M. REIS, JJ. DATE : 14th September, 2009. 1. Heard. 2. Though the School Tribunal dismissed the appeal filed by present respondent no.2, the learned Single Judge has allowed it. The learned Single Judge directed the appellants-Management to reinstate the employee, and employee then made a statement that she will not claim back- wages. 3. After Letters Patent Appeal was filed, as the order of learned Single Judge was found to be not complied with, on 13th July, 2009, 2 this Court issued notice to appellant nos. 1 and 2 to show cause why action for contempt should not be initiated against them. 4. Today, appellants have through their Adv., filed reply to said Show-cause-Notice. Adv. Mr. Parchure states that the appellants are ready and willing to comply with the orders of learned Single Judge. He points out that earlier there was a dispute in the Management and because of said dispute, the litigation culminated in Second Appeal No. 260 of 2009. Said Second Appeal is admitted and on 4th August, 2009, some orders are passed in that appeal. Because of those orders, the present appellants could effectively administer the Institution. He states that in these circumstances, there was no question of appellants implementing the directions of learned Single Judge till then. He has also pointed out that though this has been explained, an unconditional apology on affidavit is also tendered. 5. Adv. Mr. Sudame for the employee states that as the appellants have agreed to reinstate the employee, the employee has no grievance in the matter. 6. This Court issued notice suo moto and in view of reply-affidavit and statement made therein, we do not find it proper to proceed 3 further in the matter. Hence the proceedings are withdrawn. 7. On merits, Adv. Mr. Parchure contends that the employee was working on purely temporary basis and hence had no right to the post. According to him, her termination by order dated 29th December, 2004, therefore, could not have been set aside by learned Single Judge. He has invited attention to the fact that after her termination, the Management sought a proper previous permission from the Education Department and after receipt of that permission, fresh advertisement was published and a third person has thereafter been employed. He, therefore, contends that there is no vacancy to accommodate the petitioner in service. In the alternative, he points out that work and conduct of employee was not satisfactory and hence order of her termination during the period of probation ought to have been upheld. 8. Adv. Mr. Sudame states that the respondent no.2-employee was not appointed temporarily, but she was appointed on probation against a permanent vacancy. He points out order of termination, and states that it expressly refers to respondent no.2 as a probationer. He further states that before School Tribunal, no material was produced to show that work and conduct of respondent no.2 was not satisfactory. He further states that only because of use of 4 the word may , the School Tribunal found that issuance of notice of one month was not mandatory. According to him, said mistake has been corrected by the learned Single Judge. 9. It is apparent that the appointment of respondent no.2 was on probation and, therefore, against a permanent vacancy. She could have been terminated if her work or performance was found to be unsatisfactory. However, it appears that Management did not produce any records as required by Sub-rule (6) of Rule 15 of the Maharashtra Employees of Private Schools [Conditions of Service] Rules, 1981 before the School Tribunal, or then before the learned Single Judge. The learned Single Judge, therefore, has correctly found that termination of her services as a probationer was not substantiated and was not for valid reasons. The error committed by School Tribunal because of use of the word may has been corrected by learned Single Judge. 10. In these circumstances, we find nothing wrong in the impugned Judgment delivered by learned Single Judge. Letters Patent Appeal is, therefore, dismissed. No costs. Judge Judge |Hedau| 5