Bombay High Court
Sanjay S/O Sukhdeorao Gangane vs Janvikas Shikshan Sanstha Thr. ... on 12 April, 2017
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.4473 OF 2007
Sanjay s/o Sukhdeorao Gangane,
Aged about 33 years,
Occupation: Nil, R/o At Post Yeoda,
Tah. Daryapur, Dist. Amravati. ....... PETITIONER
...V E R S U S...
1] Janvikas Shikshan Sanstha,
through its Secretary/President,
Yeoda, at Post Yeoda,
Tah. Daryapur, Dist. Amravati.
2] Headmaster, Swami Vivekanand
Vidhyalaya, Kasbe Gavan,
Tahsil Anjangaon, Dist. Amravati.
3] Education Officer (Sec.),
Amravati, Tah. & Dist. Amravati.
4] Presiding Officer, School Tribunal,
Amravati Division, Amravati,
District Amravati. ....... RESPONDENTS
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Smt. Neeta Jog, Advocate for Petitioner.
Shri K.L. Dharmadhikari, AGP for Respondent No.3.
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CORAM: R.K. DESHPANDE, J.
th APRIL, 2017.
DATE: 12
ORAL JUDGMENT
1] It is not in dispute that the petitioner was working as
a Peon from 01.07.1993 to 29.04.1999. The order of appointment
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on each occasion was for one academic session only.
Undisputedly, at the end of every academic session, the petitioner
was terminated and was re-employed at the commencement of
academic session. In such a situation, the question is whether the
petitioner can claim deemed confirmation in service in terms of
Section 5 (2) of the Maharashtra Employees of Private Schools
(Conditions of Service) Regulation Act, 1977 (for short "MEPS
Act"). The another question raised is whether the services of the
petitioner could have been validly terminated without issuing one
month's notice or salary in lieu of notice as required by Rule 28
(1) of the Maharashtra Employees of Private Schools (Conditions
of Service) Rules, 1981 (for short "MEPS Rules").
2] The provisions of Section 5 (1) and (2) of the
Maharashtra Employees of Private Schools Regulation Act, 1977
are reproduced below:
5. Certain obligations of Management of
private schools:
(1) The Management shall, as soon as possible, fill
in, in the manner prescribed, every permanent vacancy
in a private school by appointment of a person duly
qualified to fill such vacancy :
[Provided that unless such vacancy is to be filled
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in by promotion, the Management shall, before
proceeding to fill such vacancy ascertain from the
Educational Inspector, Greater Bombay, [the Education
Officer, Zilla Parishad or, as the case may be, the
Director or the officer designated by the Director in
respect of schools imparting technical, vocational, art
or special education,] 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
Management shall appoint that person in such
vacancy.]
(2) Every person appointed to fill a permanent
vacancy [except [Assistant Teacher (Probationary)]]
shall be on probation for a period of two years. Subject
to the provisions of sub-sections (3) and (4), he shall,
on completion of this probation period of two years, be
deemed to have been confirmed :
[Provided that, every person appointed as
[Assistant Teacher (Probationary)] shall be on
probation for a period of three years.]
In order to claim deemed confirmation in service, the
petitioner/appellant was required to specifically alleged
that − (i) his appointment was in a permanent vacancy, and (ii) it
was made after following the procedure prescribed. In spite of
specific query, the learned counsel for the petitioner could not
point out any such averments in the memo of appeal. In the
absence of these averments and proof thereof, the question of
claiming deemed confirmation in service does not arise.
Initial appointment in a permanent vacancy on probation and
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continuation, after completion of two years continuous service
only, confers deemed confirmation on the post in terms of
sub-section (2) of Section 5 of the said Act. The appointments of
the petitioner were purely on temporary year to year basis and
hence, the question of the petitioner being appointed on probation
or acquiring deemed confirmation after rendering continuous
service beyond two years, does not at all arise. No fault can be
found with the view taken by the Trial Court.
3] On the second aspect of one month's notice as
contemplated by the provision of sub-rule (1) of Rule 28 of the
Maharashtra Employees of Private Schools (Conditions of Service)
Rules, 1981 is reproduced below:
28. Removal or Termination of Service :
(1) The services of a temporary employee other than
on probation may be terminated by the Management at
any time without assigning any reason after giving one
calendar month's notice or by paying one month's
salary (pay and allowances, if any) in lieu of notice,
In the case of an employee entitled to vacation,
the notice shall not be given during the vacation or so
as to cover any part of the vacation or within one
month after vacation.
In terms of the aforesaid provision the services of a
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temporary employee other than on probation can be terminated
by the Management at any time after giving one calender month's
notice or by paying one month's salary in lieu of notice.
Undisputedly, the present case neither a notice of one month's was
given to the petitioner or salary in lieu of notice was given.
However, that by itself will not invalidate order of termination
temporary employee and at the most, the petitioner will be
entitled to claim one month's salary. In view of this, the order of
termination could not be set aside by the Tribunal for violation, if
any, of sub-rule (1) of Rule 28 in terminating the services of the
petitioner.
4] In view of above, the petition is dismissed. No order
as to costs.
JUDGE
NSN
