Bombay High Court
Shri Samatdada Shikshan Sanstha, ... vs Bansilal Madhukar Rathod And Others on 16 October, 2025
2025:BHC-NAG:11093
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.4043/2022
PETITIONERS: 1) Shri Samatdada Shikshan Sanstha,
Ori. Resp. No.1 Vasantwadi, Taluka Mangrulpir,
District Washim, through its Secretary
Shri Suresh Rathod, Aged about 49 years,
Occupation Business.
Ori. Resp. No.2 2) The Head-Master/Principal, Late
Sudhakarrao Naik Art and Science
Junior College, Fulsaongi, Taluka
Mahagaon, District Yavatmal.
...VERSUS...
RESPONDENTS : 1) Shri Bansilal Madhukar Rathod,
(Org. Appellant) Aged about 41 years, Occupation
Service, R/o Kamthala, Tahsil
Kinwat, District Nanded.
Org. Resp. No.3 2) The Deputy Director of Education,
Amravati Division, Amravati.
Org. Resp. No.4 3) The Education Officer
(Secondary), Zilla Parishad,
Yavatmal, Tahsil & District Yavatmal.
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Mr. A.Z. Jibhkate and Mr. P.A. Jibhkate, Advocate for petitioners
Mr. S.M. Vaishnav, Advocate for respondent No.1
Mrs. D.I. Charlewar, AGP for respondent Nos.2 and 3
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CORAM : ROHIT W. JOSHI, J.
Date of reserving the judgment : 10/10/2025
Date of pronouncing the judgment : 16/10/2025
JUDGMENT:
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1. Heard. Rule. Rule made returnable forthwith. Heard finally
with the consent of the learned Advocates for the rival parties.
2. The present petition is filed challenging the judgment
dated 20/12/2021 passed by the learned School Tribunal, Amravati in
Appeal STA No.12/2018 whereby the learned Tribunal has set aside
otherwise termination of services of the respondent No.1 and has
directed the petitioners to reinstate him in service with continuity of
back wages.
3. Respondent No.1 holds qualification of M.Sc. (Zoology)
and B.Ed. The petitioner No.1 is a Trust registered under the
Maharashtra Public Trusts Act. It runs a junior college named Late
Sudhakarrao Naik Arts and Science Junior College, Fulsaongi. Petitioner
No.2 is Headmaster of the said college. On 07/07/2015 the Deputy
Director of Education had granted permission to petitioner No.2 to issue
advertisement for appointment of eight lecturers on full time basis.
Pursuant to the said permission, the petitioners issued advertisement
dated 24/08/2015. Respondent No.1 participated in the selection
process and was appointed on the post of lecturer in Biology from open
category. Perusal of appointment order will demonstrate that the
appointment of respondent No.1 was from 14/09/2015 to 14/09/2017.
Clause-5 of the appointment order reads as under :-
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"Your appointment is temporary/against leave vacancy
and therefore, on the expiration of aforesaid period your
services shall stand terminated without any prior notice."
(True English Translation)
4. Respondent No.1 filed appeal bearing Appeal STA
No.12/2018 before the learned School Tribunal, Amravati inter alia
contending that his services were terminated without issuing any order
of termination w.e.f. 29/01/2018. Respondent No.1 contended that he
was appointed in service after following the prescribed procedure
against a clear vacant post. He stated that on two occasions approval to
his appointment was refused by the Education Officer and therefore, the
petitioners restrained him from continuing with duties resulting in
otherwise termination. Respondent No.1 further stated that the
Management had made attempt to fill up the post on which respondent
No.1 was working by issuing advertisement. He states that he was given
oral undertaking that his services will be protected and that the
advertisement was issued only in order to satisfy official compliance of
directions issued by the Education Officer.
5. The petitioners filed their written statement in the appeal
inter alia contending that the appointment of respondent No.1 was not
on probation but merely on temporary basis for a period of two years.
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The petitioners also contended that respondent No.1 had
misappropriated a sum of Rs.70,000/- and had also accepted his guilt
by issuing apology letter dated 23/07/2017. It is contended that the
approval to the appointment of respondent No.1 was refused on two
occasions. The case of the petitioners is that in view of aforesaid two
circumstances, respondent No.1 voluntarily abandoned his services
w.e.f. 01/08/2017. The petitioners contend that thereafter fresh
advertisement for recruitment was issued pursuant to which one
Mr. B.V. Ade was appointed on the post of lecturer which was previously
held by the respondent No.1.
6. After hearing the parties, learned Tribunal allowed the
appeal vide judgment and order dated 20/12/2021. The learned
Tribunal refused to accept the case of the petitioners as regards
abandonment of services w.e.f. 01/08/2017 since muster roll placed on
record indicated that respondent No.1 was working in the Junior
College till 15/11/2017. The learned Tribunal has held that respondent
No.1 was appointed on probation and that if his performance was found
to be unsatisfactory the services could be terminated by issuing one
month notice which was also not done by the petitioners. The learned
Tribunal accordingly directed the petitioners to reinstate respondent
No.1 in service with continuity and 100% back wages.
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7. In the present petition a contention is raised by the
petitioners that respondent No.1 was aware about the fact that the post
occupied by him was to be filled up through fresh recruitment process.
Attention of this Court is drawn to the memorandum of appeal in which
statement with respect to fresh recruitment notice is made by
respondent No.1. Mr. Jibhkate, learned Advocate for the petitioners has
drawn attention to the alleged joining report dated 15/11/2017
submitted by Mr. Ade, who was appointed on the post of lecturer which
was held by respondent No.1. He contends that the joining report is
accepted by respondent No.1 as Incharge Principal and that respondent
No.1 had left the institution after said Mr. Ade joined in service.
Mr. Jibhkate, learned Advocate therefore contends that respondent No.1
left service voluntarily on 15/11/2017. His contention is that
respondent No.1 has created illusory cause of action that his services
were terminated on 29/01/2018.
8. The contention raised by the learned Advocate for the
petitioners is contrary to the stand taken in the written statement.
Perusal of written statement filed before the learned School Tribunal
will demonstrate that a categorical stand that respondent No.1 had
voluntarily left service w.e.f. 01/08/2017 is raised by the petitioners.
The petitioners cannot be allowed to alter their stand for the first time
in the present petition. It will be pertinent to mention that the alleged
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joining report dated 15/11/2017 was never placed on record before the
School Tribunal. The said document is also not filed along with petition
which is filed on 22/03/2022. The document is placed on record along
with Civil Application No.2323/2025 which is filed on 25/09/2025. The
said contention that respondent No.1 had abandoned his service on
15/11/2017 in view of appointment of Mr. B.V. Ade is, therefore, liable
to be rejected.
9. Another contention raised by the learned Advocate for the
petitioners is that there is no material on record to indicate that
respondent No.1 was continued in service after 15/11/2017. He
contends that respondent No.1 has created an illusory cause of action by
stating that his services were orally terminated on 29/01/2018. The
contention will have to be dealt with in light of pleadings of the
petitioners in the written statement where they have stated that
respondent No.1 has worked only till 01/08/2017. Respondent No.1 has
produced material to falsify the said contention. The petitioners did not
contend that respondent No.1 did not work beyond 15/11/2017 or that
he had abandoned services on 15/11/2017. The petitioners cannot be
allowed to raise any contention which is based on enquiry of facts for
the first time in the writ petition. The petitioners cannot be allowed to
raise any contention contrary to their own written statement. It will be
pertinent to mention that had this being raised before the learned
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Tribunal, respondent No.1 could have raised appropriate counter to the
same. The said contention is also liable to be rejected.
10. Mr. Jibhkate, learned Advocate drawing attention to the
appointment order states that the appointment of respondent No.1 was
not on probation but on temporary basis for a period of two years. In
this regard, it will be appropriate to refer to letter dated 07/07/2015
issued by the respondent No.2 granting permission to petitioners to fill
up eight posts of lecturers in the concerned College. Perusal of the
communication will demonstrate that all eight posts were full time
posts. The petitioners have stated in the written statement as well as in
the present petition that proposal for approval to the appointment of
respondent No.1 was sent to the Education Officer on two different
occasions and that the same was rejected on the ground that backlog of
reserved posts was not cleared. The petitioners have not stated that the
proposal for approval was sent treating the appointment as temporary
appointment. It will also be pertinent to state that according to the
petitioners approval was rejected on account of failure to clear the
backlog of reserved vacancies. It is thus apparent that the appointment
was not made on temporary basis but on probation. It will be pertinent
to state that according to the petitioners appointment of Mr. Ade is a
regular appointment. However, perusal of his appointment order will
also indicate that appointment order does not state that the same was
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made on probation. It is the contention of the petitioners that
appointment of Mr. Ade is a substantive appointment. The appointment
orders of respondent No.1 and that of Mr. Ade are in same format. As
stated above, appointment order was issued in favoaur of respondent
No.1 after obtaining permission from the Deputy Director for filling up
the post on permanent basis. It is, therefore, obvious that the
appointment of respondent No.1 will also have to be treated as
substantive appointment. The finding by the learned School Tribunal in
this regard does not warrant any interference. It will be pertinent to
mention here that Section 5 (2) of the Maharashtra Employees of
Private Schools (Conditions of Service) Regulation Act, 1977 (for short
hereinafter referred to as "MEPS Act") mandates that the Management
shall fill up every vacant post on permanent basis. The provision further
provides that appointment of an employee against a clear post will be
made on probation for a period of two years.
11. Learned Advocate for the petitioners has placed reliance on
the judgment of this Court in the matter of Rayat Shikshan Sanstha and
another Vs. Yeshwant Dattatraya Shinde, reported in 2009 (6) Mh.L.J.
476 to contend that burden of establishing that appointment was made
on substantive basis against a clear and permanent post is on the
employee. In the case at hand respondent No.1 has discharged the said
burden in view of communication dated 07/07/2015 issued by Deputy
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Director granting permission to fill up the post, which indicates that the
post in question was full-time post. The judgments in the matter of Civil
Station Education Society, through its Secretary, Sjit Sen Gupta, Nagpur
and another Vs. Education Officer (Secondary), Nagpur and another
(Writ Petition No.3681/2002- Nagpur Bench) decided on 06/05/2014
and Bharatiya Gramin Punarrachana Sanstha Vs. Vijay Kumar and
others, reported in 2003 (1) Mh.L.J. 563 will also not assist the
petitioners since the permission letter dated 07/07/2015 said document
and subsequent advertisement are sufficient to demonstrate that the
appointment of respondent No.1 was against the substantive post. The
fact that proposals for seeking approval to the appointment of
respondent No.1 were forwarded to the office of Education Officer is
sufficient to fortify the contention of respondent No.1 that his
appointment was on probation. It will be pertinent to state that it is not
the case of petitioners that the proposals were sent seeking approval to
the appointment of respondent No.1 against any leave
vacancy/temporary post. It needs to be reiterated that the Management
is under an obligation to fill up every permanent vacancy by making
appointment of duly qualified candidate on probation.
12. Reliance on the judgment in the case of Kalpataru Vidya
Samasthe (R) and another Vs. S.B. Gupta and another , reported in
(2005) 7 SCC 524 is for the contention that an employee is bound by
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the terms and conditions mentioned in the appointment order. On the
basis of the said judgment, it is contended that respondent No.1 was not
appointed on probation but merely on temporary basis for a fixed
period of two years. The said contention cannot be accepted in view of
the letter dated 07/07/2015 issued by the Deputy Director granting
permission to fill up the post, advertisement issued by the petitioners,
proposals for approval forwarded to the Deputy Director and the fact
that the appointment order of Mr. Ade, who, according to the
petitioners is appointed on a substantive post is also in the same format.
13. The objection that Mr. Ade was a necessary party to the
appeal is also liable to be rejected, in view of copy of appointment order
of Mr. Ade, which is placed on record, which indicates that his
appointment was made against a leave vacancy. In Clause-5 of the
appointment order of Mr. Ade the word, 'temporary' is scored and the
word, 'leave vacancy' is retained.
14. As regards the back wages, learned Advocate for the
petitioners is right in contending that full back wages are awarded to
respondent No.1 without recording any reason. To this extent the
impugned order is liable to be quashed.
15. In view of the above, following order is passed.
(i) Writ Petition is partly allowed. The judgment and
order dated 20/12/2021 passed by the learned Presiding Officer, School
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Tribunal, Amravati Division, Amravati in Appeal STA No.12/2018 is
maintained to the extent the termination of respondent No.1 is set aside
by the learned Tribunal and directions for reinstatement in service with
continuity are issued. The order is quashed with respect to award of
back wages. The matter is remanded to the learned School Tribunal to
decide the issue of back wages afresh in accordance with law.
(ii) The parties are directed to appear before the learned
School Tribunal on 03/11/2025. Parties to note that separate notice for
appearance will not be issued.
16. Rule is made absolute in the aforesaid terms. No order as to
costs.
(ROHIT W. JOSHI, J.)
Wadkar
Signed by: S.S. Wadkar (SSW)
Designation: PS To Honourable Judge
Date: 16/10/2025 19:47:40
