HINDUSTAN EDUCATION SOCIETY AND ANR.

SK. KALEEM SK. GULAM NABI AND ORS.

MARCH 10, 1997

[K. RAMASWAMY AND G.T. NANAVATI, JJ.)

Service Law :

Maharashtra Employees of P1ivate School (Condition of Service) C Regulation Act, 1977 :

S.5--Temporary appointmellt-'lJ.ppointment made tempormily for 11 months---Claim for regularisation allowed by High Court-Held, the appointment cannot be considered to be a pennanent appointment-Direction issued. by High Court that respondent no. 1 was regularly appointed is clearly illegal D and is set aside.

CIVIL APPELLATE JURISDICTION: Civil "Appeal No. 1971 of 1997.

From the Judgment and Order dated 31.7.96 the Bombay High Court E in W.P. No. 5821 of 1995.

S.V. Deshpande for the Appellants.

The following Order of the Court was delivered :

Since respondent No. 1, it is reported, has refused to receive the notice, it must be deemed to be sufficient notice. Respondent Nos. 5 and 7 have been served. But they arc appearing neither in person nor through . counsel.

Leave granted.

Sim e, the respondents are appearing neither in person nor through counsel, we have taken the assistam;:e of Shri Deshpande, learned counsel appearing for the appellants and ,'gone through the relevant rules and orders of appointment. The admitted position is that respondent No. 1 came to be appointed on June 10, 1992 against a clear vacancy with the H following stipulation :

HINDUSTAN EDN. SECY. v. SK. KALEEM SK. GULAM NABI 911

"Your appointment is purely temporary for a period of 11 months A from 11.6.1992 to 10.5.1993 in the clear vacancy. After expiry of the above period your service shall stand terminated without any notice."

Thus, it could be seen that the appointment of the first respondent was only a temporary appointment ag&inst a clear vacancy. The appoint- B ments are regulated and controlled by the provisions of the Maharashtra Employees of Private School (Conditions of Service) Regulation Act, 1977.

Section 5 of the Act postulates as under :

"5. Certain Obligations of Managements of Private Schools.

(1) The Management shall as soon as possible fill in the manner prescribed every permanent vacancy in a private school by appointment of a person duly qualified to fill in such vacancy.

Providing that, unless such vacancy is to be filled in by D promotion, the Management shal~ before proceeding to fill in such vacancy, ascertain from the Educational Inspector, greater Bombay, or as the case may be, the Education Officer Zilla Parishad, whether there is any suitable person available on the list of. surplus persons maintained by him for absorption in other schools; and in the event of such person being available, the E Management shall appoint that person in such vacancy.

(2) Every person appointed to fill a permanent vacancy shall be on probation for a period of two years. Subject to the provisions of sub-section ( 4) and (5), he shall, on coinpletion of this probation period of two years, be.deemed to have been .confirmed. · F

(3) If in the opinion of the Management, the work or behaviour of any probationer, during the period of his probation, is not satisfactory, the Management may terminate his services at anytime during the said period after giving him one month's notice, G or salary of one month in lieu of notice.

( 4) If the services of any probationer are terminated under subsection (3) and he is reappointed by the.Management in the same schoolor any other school belonging to it within a period of one year from which his services were terminated, then the period of H

SUPREME COURT REPORTS

(1997] 2 S.C.R.

A probation undergone by him previously shall be taken into consideration in calculating the required period of probation for the purposes of sub-section (2).

( 4A) Nothing in sub-section (2), (3) or ( 4) shall apply to a person appointed to fill a permanent vacancy by promotion or by absorption as provided under the proviso to sub-section (1) ..

(5) The Management may fill in every temporary vacancy by appointing a person duly qualified to fill such vacancy. The order of appointment shall be drawn up in the form - prescribed in that behalf, and shall state the period of appointment of such person."

In view of the above and the order of appointment, the appointment of the respondent was purely temporary for a limited period. Obviously, the approval given by the competent authority was for that temporary D appointment. As regards permanent appointments, they are regulated by sub-sections(!) and (2) of Section 5 of the Act according to which the Management shall as soon as possible, fill up, in the manner prescribed, every permanent vacancy in a private school by appointment of a person duly qualified to fill in such vacancy. Every person so appointed shall be E put on probation for a period of two years subject to the provisions of sub-section (4) and(S). He shall, on completion of the probation of period of two years, be confirmed.

Under these circumstances, the appointment of the respondent cannot be considered to be a permanent appointment. As a consequence, F the direction issued by the High Court in the impugned judgment dated July 31, 1996 in writ petition No. 5821/95 that he was regularly appointed is clearly illegal and cannot be sustained.

The appeal is accordingly, allowed. The order of the High Court G stands reversed and the Writ Petition stands dismissed No costs.

R.P.

Appeal allowed.