Mahatma Phule Krida Prasarak vs Smt.Sumati Tukaram Kashid
2010 Latest Caselaw 82 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                              
                 CIVIL APPELLATE JURISDICTION

                WRIT PETITION NO. 4716 OF 2000




                                             
     1. Mahatma Phule Krida Prasarak
        Mandal, At-Post Sonand,
        Tal.Sangola, Dist. Solapur.




                                     
     2. The Head Master,
        Savitribai Phule Prashala,
                       
        Sonand, At-Post Kadlas,
        Tal.Sangola, Dist. Solapur.            ... Petitioners
                      
                 v/s

     1. Smt.Sumati Tukaram Kashid
        alias Sumati Vijay Borade
      

     2. The Education Officer,
        Secondary Section,
   



        Zilla Parishad, Solapur.

     3. The Presiding Officer,
        Addl. School Tribunal,
        Pune Region, at Solapur.          ... Respondents





     Mr.V.P.Sawant i/by Mr.Dilip Bodake for the petitioners.

     Mrs.Anita Agarwal for respondent No.1.





     Mr.S.N.Bhosale, A.G.P. for respondent No.2.



                       CORAM: SMT.NISHITA MHATRE, J.

DATED: 21ST OCTOBER, 2010

ORAL JUDGMENT:

1. This writ petition has been filed to challenge the order

passed by the School Tribunal on 26.4.1999 in Appeal No.11

of 1980. By the impugned order the School Tribunal has set

aside the order of termination issued by the petitioners

against respondent No.1. It has further directed the

petitioners to reinstate respondent No.1 with continuity of

service and full back wages.

2.

On 6.6.1995, the petitioners issued a letter appointing

respondent No.1 with effect from 12.6.1996 as an Assistant

Teacher. According to the petitioners, this appointment

order was for a temporary appointment and gave no right

whatsoever to respondent No.1 to claim permanent

employment with the petitioners. The petitioners also sought

an assurance from respondent No.1 that she had accepted

her appointment against a vacancy reserved for a candidate

from the reserved classes for the academic year 1995-1996.

This assurance or declaration was submitted by respondent

No.1 on 12.6.1995. Approval was granted on 30.3.1996 by

respondent No.2 to the appointment of respondent No.1 on

probation for two years. An application was submitted by

respondent No.1 on 31.5.1996 again for appointment in the

next academic year, according to the petitioners.

Accordingly, she was appointed afresh, claim the

petitioners, on temporary basis for the academic year

1996-97. A declaration/assurance was sought once again

from respondent No.1 as was sought from her in 1995. The

petitioners claim that respondent No.1 was absent

unauthorizedly from 1.11.1996. Therefore the Managing

Committee of the petitioners and the School Committee

passed resolutions on 29.3.1997 and 31.3.1997, respectively,

terminating her services.

3. Respondent No.1 filed an appeal before the School

Tribunal, Solapur in January, 1998. The delay in filing the

appeal was condoned on 5.3.1999. It appears that the

petitioners filed about 22 documents along with a list on

23.4.1999. The School Tribunal without considering these

documents passed an order on 26.4.1999 directing that

respondent No.1 should be reinstated in service with

continuity and full back wages.

4. The petitioners then preferred Writ Petition No.3996

of 1999 challenging the order of the School Tribunal. The

judgment and order of the Tribunal was set aside by consent

of the parties and the matter was remanded to the Tribunal

for hearing it afresh. Respondent No.1 filed an affidavit with

respect to the 22 documents which were filed by the

petitioners. The matter was heard and the School Tribunal

by the impugned order dated 26.4.1999 allowed the appeal

directing reinstatement of respondent no.1 with continuity of

service and full back wages. Hence the present writ petition.

5. Mr.Sawant, the learned counsel appearing for the

petitioners submits that the petitioners had appointed

respondent No.1 only on a temporary basis. She had agreed

to such an appointment and, therefore, had submitted a

declaration/assurance accepting her appointment as a

temporary employee. He therefore submits that respondent

No.1 had no right to contend that she was entitled to

continue in service. He further submits that, the fact that the

vacancy available with the petitioners in 1995, against which

the respondent No.1 was appointed, was for a candidate from

the reserved classes, cannot be doubted as respondent No.1

had accepted this position in her declaration. He submits

that since the petitioners had found that respondent No.1

had remained absent unauthorizedly without submitting any

application for leave, a decision was taken by the petitioners

not to continue her further in service after the end of the

academic year. In the alternative, Mr.Sawant argues that

assuming it is held that respondent No.1 was appointed as a

probationer, it was always open for the petitioners to

terminate her services in accordance with Section 5(2) of the

Maharashtra Employees Private School Act (in short,

M.E.P.S. Act). He then submits that the Tribunal has set

aside the order of termination dated 31.3.1997 although

respondent No.1 in her appeal had contended that she had

been illegally terminated from service from 9.6.1997.

According to him, therefore, the Tribunal could not have set

aside the order which respondent No.1 contended, did not

exist. He submits that in any event, assuming it is held that

respondent No.1 was a probationer and that she had been

terminated from service on 9.6.1997, she has not completed

the period of two years which is a pre-requisite for an

assistant teacher to be deemed to be a permanent teacher.

Further more, he submits, that there is no challenge to the

order dated 31.3.1997 and, therefore, that order cannot be

set aside. The learned counsel points out that the impugned

order is nothing but a reproduction of the earlier order

passed by the Tribunal which was set aside by this Court. He

then submits that the Tribunal has granted full back wages

although there is no material on record to establish the fact

that respondent No.1 was not gainfully employed after her

dismissal from service.

6. Mrs.Agarwal, appearing for respondent No.1 submits

that the Tribunal has appreciated the evidence on record in

its proper perspective and has delivered the judgment based

on the evidence on record. She submits that the Tribunal has

accepted the contention of respondent No.1 that the

appointment order which had been issued in her favour

stipulated that she was appointed on probation. She then

submits that extraneous documents cannot be considered

while ascertaining whether the appointment order was for a

temporary appointment or an appointment on probation. She

submits that an appointment order must speak for itself. She

then submits that Rules 15 and 16 of the Maharashtra

Employees of Private Schools Rules (in short, "M.E.P.S.

Rules") read with Section 5(2) of the M.E.P.S. Act, require

the petitioners to maintain the service record of an employee

including an employee on probation. According to her, there

was no material on record to establish the fact that either

the work or the conduct of respondent No.1 was not

satisfactory. The confidential reports were not produced

before the Tribunal according to the learned advocate. Apart

from this, although it was the contention of the petitioners

that respondent No.1 had remained absent unauthorizedly,

the leave record was also not produced before the Tribunal.

She further submits that the contention of the petitioners

that respondent No.1 was appointed temporarily against a

reserved vacancy, cannot be accepted since there was no

material on record to establish this fact. Mrs.Agarwal relies

on the judgment in the case of Shri Vinayak Vidhyadayini

Trust & anr. v/s Smt.Aruna T. Prabhu & ors., reported

in 2010 (5) All MR 200, in support of her submission that

non-compliance of Rules 14 and 15 of the M.E.P.S. Rules

which are mandatory, would vitiate the order of termination.

7.

The appointment order which has been issued on

6.6.1995 specifically states that she was being appointed on

probation for two years with effect from 12.6.1995. There is

no material on record to indicate that the appointment order

was issued against a temporary vacancy nor is there anything

mentioned in the appointment order that the appointment

was being made against a reserved vacancy. Merely because

a letter or declaration has been obtained from respondent

No.1 by the petitioners stating that she had accepted her

appointment against a reserved post, on temporary basis for

the academic year 1995-1996, would not in my view, change

the intent of the order of appointment issued to her. In the

order dated 4.6.1996 appointing respondent No.1 from

10.6.1996 it is mentioned that the appointment is against a

reserved post. However, the issuance of this order, in my

opinion, is not material as the petitioners had appointed

respondent No.1 as a probationer in 1995 itself. They could

not therefore have issued another appointment letter in 1996

appointing her for the academic year 1996-1997.

8. The Tribunal, in my opinion, has appreciated the

evidence correctly. It has found that the Education Officer

had accorded approval to the appointment of respondent No.

1 on probation for two years by issuing an order dated

30.3.1996.

Therefore, in my view, the Tribunal has rightly

concluded that the order issued to respondent No.1 was for

her appointment on probation and not as a temporary

employee.

9. The next issue which will have to be considered is,

whether the petitioners had a right to terminate the services

of respondent No.1 during the probation period. Under

Section 5(2) of the M.E.P.S. Act, the services of an Assistant

Teacher, who is appointed on probation, can be terminated

by the management, at any time, during the period of

probation, after giving him/her one month's notice or salary

of one month in lieu of notice. However, such action can be

taken by the management if it finds that the work or

behaviour of the probationer is not satisfactory. To ascertain

whether the work or behaviour of a probationer is not

satisfactory, it would be necessary to consider the

confidential reports of an employee. Rule 14 of the M.E.P.S.

Rules prescribes that a self-assessment report must be

submitted by an employee to the school. Rule 15 stipulates

that confidential reports of an employee have to be written

annually as prescribed in the forms in Schedule "G". Every

employee is to be made aware of any adverse remarks before

the end of August each year. Under sub-clause (6) of Rule 15,

the performance of an employee appointed on probation is to

be assessed by the Head of the school objectively and a

record of such an assessment is to be maintained. There is no

material on record to indicate whether such confidential

reports were maintained or whether any assessment was

made by the head of the school in respect of the work and

behaviour of respondent No.1. In the case of Shri Vinayak

Vidhyadayini Trust & anr. (supra), a Division Bench of

this Court, while considering the import of Rules 14 and 15,

has observed thus -

"13. It is true that as a general principle in service jurisprudence an employee is appointed on probation to test his/her performance and suitability for the post appointed and if during this period of probation, the performance is found to be unsatisfactory, the employer has the right to discontinue the employee on completion of the probationary period and without assigning any reasons. It is also equally well settled that such an order of termination is not a stigmatic

order and as per the contract of service or the terms of

appointment, the employer has such a right so that the exercise of such right would not amount to an illegal action on the part of the employer. Such an order will

not by itself be a penal order and the period of probation furnishes a valuable opportunity to the master to closely observe the work of the probationer. However, the MEPS Act is a special piece of legislation and Section 5(2) of the said Act states that every

person appointed to fill a permanent vacancy shall be on probation for a period of two years and subject to the provisions of sub-sections 3 and 4, he shall, on completion of his probation period of two years, be

deemed to have been confirmed. As per sub-section 3 of Section 5 of the MEPS Act, 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 any time during the said period after giving him one month's

notice or salary of one month in lieu of notice. Thus, the appointment on probation and the termination of the service of the probationer are governed by the provisions of sub-sections 2 and 3 of Section 5 of the MEPS Act. In addition, Rules 14 and 15 of the MEPS

Rules, 1981, have elaborately set out the procedure for the assessment of the probationer's performance and

writing of his confidential reports. When a special statute like the MEPS Act has provided for a specific procedure to be followed while terminating the employment of a probationer on the ground of unsatisfactory performance, the said procedure is

mandatory and non-compliance thereof would vitiate the order of termination and the School Tribunal will be full justified to interfere with the same and set it aside by directing reinstatement of the appointee/appellant."

Therefore, the petitioners have miserably failed to

demonstrate the assessment made by the head of the school

in respect of the work and behaviour of respondent No.1

Certain documents have been filed on record by the

petitioners to establish their contention that the behaviour of

respondent No.1 was less than satisfactory. According to

the petitioners, because of the nature of the behaviour of

respondent No.1, the other employees of the school had

given a notice of an indefinite strike. It is, therefore,

contended by the learned counsel for the petitioners that

they were left with no alternative but to terminate the

services of respondent No.1 in order to maintain the

discipline and good behaviour in the school.

10. The Tribunal has concluded that the services of

respondent No.1 were terminated by the order dated

31.3.1997. It has not accepted the contention of respondent

No.1 that her services were terminated on 9.6.1997. The

Tribunal having found that the order dated 31.3.1997 was

illegal, has set aside that order. It has been contended by

Mr.Sawant that the order terminating the services of

respondent No.1 has been passed within two years from the

appointment order and even assuming it is held that she was

a probationer, the order cannot be said to be illegal. In my

opinion, this submission is without merit as there is no

material on record to indicate that the behaviour and the

work of respondent No.1 was unsatisfactory. The Tribunal

has found that the record has been created by the petitioners

in order to establish their case that the conduct of

respondent No.1 was not satisfactory. It has found that the

documents filed by the petitioners were not genuine as there

was certain interpolations made in those documents. Apart

from this, the order dated 30.3.1996 passed by the Education

Officer granted approval to the appointment of respondent

No.1 on probation for a period of two years from 12.6.1995.

11. In my opinion, no case for interference has been made

out by the petitioners as the impugned order is not perverse

nor is there any error of law apparent on the face of the

record as attempted to be argued by Mr.Sawant.

12. Writ petition dismissed. Rule discharged. No order as

to costs.

13. An application was made by Mr. Sawant, the learned

Advocate for the petitioners, for a stay of this order. Stay

refused.

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