[Cites 7, Cited by 0]
Bombay High Court
Belapur Education So And Anr vs Girish Achturao Paranjape And Anr on 9 April, 2026
2026:BHC-AUG:15071
IN THE JUDICATURE OF HIGH COURT AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1812 OF 2006
1] Belapur Education Society,
Tq. Shrirampur, Dist. Ahmednagar
Through It's President
Shri. Pralhad Dnyandev Kolsepatil,
Age 50 years, Occupation Agri.,
R/o Belapur, Tq. Shrirampur,
Dist. Ahmednagar.
2] Headmaster, New English School,
Bheradapur, Tq. Shrirampur,
Dist. Ahmednagar. ...Petitioners
(Orig. Respondents)
VERSUS
1] Shri. Girish Achutrao Paranjape,
Age 36 years, Occupation Service,
R/o Belapur, Tq. Shrirampur,
Dist. Ahmednagar. ...Respondent
(Orig. Appellant)
2] Education Officer (Secondary)
Zilla Parishad, Ahmednagar. ...Respondents
(Orig. Respondent No.3)
.....
Advocate for Petitioners : Senior Counsel Mr. V. D. Sapkal i/b Mr.
V. B. Jagtap
Advocate for Respondent No.1 : Mr. V. H. Dighe h/f Mr. S. S. Wagh
Advocate for Respondent No.2 -State : Mr. V. M. Lomte
.....
CORAM : ARUN R. PEDNEKER, J.
Dated : April 09, 2026
JUDGMENT :
1. Rule was granted on 08/02/2008. Heard finally.
2. By the present Writ Petition, the petitioners - Education Society
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challenge the order dated 07/01/2006 passed by the School Tribunal,
Solapur in Appeal No.11 of 2004, whereby the Tribunal allowed the appeal
filed by respondent No.1 - employee and directed the petitioners to
reinstate respondent No.1 with back wages. The Tribunal further declared
that the services of respondent No.1 shall be deemed to have been
approved and that he shall be treated as confirmed upon completion of the
probation period.
3. The brief facts leading to the filing of the present Writ Petition, as
noticed by the Tribunal, are as follows:
Respondent No.1 - employee was initially appointed as a Clerk on
22/07/1996 after having obtained qualifications of B.A. and B.Com. During
the course of his service, respondent No.1 improved his qualifications by
passing the B.P.Ed. examination, thereby becoming eligible for
appointment as an Assistant Teacher in terms of Rule 2(k) of the
Maharashtra Employees of Private Schools (Conditions of Service) Rules,
1981.
4. Accordingly, by order dated 11/06/2001, the petitioners appointed
respondent No.1 as an Assistant Teacher with effect from 13/06/2001 to
work in New English School, Berdapur, which is run by the petitioners. The
said appointment was for the academic year 2001-2002. As the services of
respondent No.1 were found satisfactory, he was again issued a fresh
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appointment order dated 11/06/2002 for the academic year 2002-2003.
5. Thus, respondent No.1 continued in the service of the petitioners
from 1996 to 2003. However, his services came to be terminated on
12/06/2003. According to respondent No.1, the said termination was illegal
and effected without following the due procedure prescribed under law.
Therefore, respondent No.1 challenged the said termination before the
School Tribunal by filing an appeal.
6. The present petitioners/ original respondents resisted the appeal by
filing their reply before the Tribunal. It was contended that respondent No.1
was initially engaged as a Clerk on an honorary basis, as there was no
sanctioned post of Clerk in the institution. It was further contended that
after acquiring the B.P.Ed. qualification, respondent No.1 was appointed as
an Assistant Teacher purely on a temporary basis for the academic year
2001-2002, and thereafter again on a purely temporary basis for the
academic year 2002-2003.
7. Respondent No.2 - Education Officer (Secondary) also opposed the
appeal before the Tribunal. It was stated that respondent No.1 was initially
appointed as a Clerk on 22/07/1996 and worked up to June 1999, during
which period the school was non-aided. It was further stated that
respondent No.1 acquired B.Ed. qualification in April 1999, and thereafter
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the petitioners appointed him as an Assistant Teacher from 13/06/2001 in
the non-aided division of their New English School, Bheradpur. Accordingly,
respondent No.1 worked in the said school during the academic years
2001-2002 and 2002-2003.
8. Respondent No.2 further stated that during the academic year 2003-
2004, due to reduction in the strength of students, certain divisions were
abolished. Consequently, the appointment of respondent No.1, which was
for a limited academic period, automatically came to an end upon expiry of
the said period. Respondent No.2 also contended that the petitioners had
appointed respondent No.1 on a D.Ed. post, whereas he was holding B.P.Ed.
qualification, and therefore the appointment was not legal and proper. It
was further stated that since respondent No.1 was appointed in a non-
aided division, respondent No.2 - Education Officer was not responsible for
payment of his salary.
9. After considering the submissions of the parties, the learned Tribunal
held that respondent No.1 had been appointed in accordance with the
provisions of the Maharashtra Employees of Private Schools (Conditions of
Service) Regulation Act, 1977 and the Rules of 1981. The Tribunal further
held that the termination order dated 12/06/2003 was illegal and
accordingly directed the petitioners to reinstate respondent No.1 with back
wages.
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10. The learned Tribunal further observed that under Rule 8(2) of the
M.E.P.S. Rules, 1981, it was the statutory obligation of the petitioners -
Management to submit a proposal to respondent No.2 - Education Officer
seeking approval of the appointment within a fortnight from the date of
appointment. The Tribunal further held that the order of respondent No.2
granting or refusing approval was not relevant for determining the status of
respondent No.1, since respondent No.1 was not a party to the proceedings
before the Education Officer regarding grant of approval. According to the
Tribunal, the matter concerning approval of appointment was essentially
between the petitioners and respondent No.2 and was relevant only for the
purpose of release of grant to the Management from the State
Government.
11. The Tribunal further held that any failure on the part of the
petitioners to seek approval could not be attributed to respondent No.1,
and therefore it would be untenable to deny him the status of a duly
appointed employee merely on the ground that approval had not been
granted by respondent No.2.
12. The Tribunal also observed that even if the strength of students had
reduced and certain divisions were closed after two years, respondent No.1
had already acquired the status of a permanent employee upon completion
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of the probation period. Therefore, his services were protected under Rule
26 of the M.E.P.S. Rules, 1981, and without following the procedure
prescribed therein, the petitioners could not have terminated his services.
13. The Tribunal further noted that the petitioners are running six
secondary schools, one junior college and one primary school. Therefore,
even if the division in which respondent No.1 was working had been closed,
there was a statutory obligation on the part of the petitioners to absorb
respondent No.1 either as a Clerk in his original post or as an Assistant
Teacher in any of the other institutions run by them, in accordance with the
provisions of Rule 26 of the M.E.P.S. Rules, 1981.
14. In view of these findings, the Tribunal held that the termination of
respondent No.1 was effected in violation of the provisions of the Act and
the Rules and was therefore illegal. Consequently, the Tribunal set aside
the termination order and directed the reinstatement of respondent No.1
with back wages. The Tribunal further declared that the services of
respondent No.1 shall be deemed to have been approved and that he shall
be treated as confirmed upon completion of the probation period.
15. Challenging the aforesaid order passed by the School Tribunal, the
learned Senior Counsel Mr. V. D. Sapkal instructed by Mr. V. B. Jagtap
for the petitioners - Management submits that respondent No.1 - employee
was initially working as an honorary Clerk, though there was no sanctioned
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post of Clerk in the institution. According to the petitioners, respondent
No.1 worked as a Clerk up to the end of the academic year 2000-2001 and
was paid only a lump sum honorarium of Rs.500/-.
16. It is further submitted that disputes arose between the petitioners -
Management and respondent No.1 around January 1999, which led to
several litigation between the parties. The disputes between the parties
resulted in proceedings before various Courts, including a Writ Petition
before this Court. During the said period, there was serious conflict
regarding the management of the school and no valid School Committee
was functioning. Consequently, this Court intervened and appointed an ad-
hoc committee to manage the affairs of the school and the trust. The said
ad-hoc committee was vested with full powers to administer the institution.
Subsequently, elections were conducted in June 2003, pursuant to which a
new management body came to be constituted.
17. It is further submitted that the petitioners had permission to run the
school from 5th Standard to 10th Standard during the academic year 2001-
2002. However, the additional divisions of 5th and 6th Standards were
permitted on a non-grant basis. In the subsequent academic year 2002-
2003, the strength of students reduced considerably and, therefore, the
additional divisions were not continued and came to be closed.
18. The learned Counsel for the petitioners further submits that
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respondent No.1 was issued an appointment order dated 11/06/2001,
whereby he was appointed as an Assistant Teacher. However, the said
appointment was purely on a temporary basis for the academic year 2001-
2002. Thereafter, another appointment order was issued for the academic
year 2002-2003, again on a purely temporary basis.
19. It is submitted that both the appointment orders were issued only for
one academic year each, and upon expiry of the said period the services of
respondent No.1 automatically came to an end. According to the
petitioners, since there was no further requirement of the services of
respondent No.1 due to closure of divisions, the question of continuation of
his services did not arise.
20. The learned Counsel for the petitioners further submits that
respondent No.1 was never appointed on probation, nor did his
appointment satisfy the requirements of Section 5 of the Maharashtra
Employees of Private Schools (Conditions of Service) Regulation Act, 1977.
It is contended that respondent No.1 had no right to claim permanency as
he was not appointed against a clear and permanent vacancy. It is also
contended that the appointment was not in accordance with the
Government policy regarding appointment of Shikshan Sevaks, and
therefore the appointment itself was not valid in law.
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21. Per contra, the learned Counsel Mr. V. H. Dighe holding for Mr. S.
S. Wagh appearing for respondent No.1 - employee submits that
respondent No.1 had initially worked as a Clerk from the year 1996 and
thereafter, upon acquiring B.P.Ed. qualification, he was appointed as an
Assistant Teacher in the year 2001. It is submitted that respondent No.1
rendered continuous service with the petitioners from 1996 to 2003, and
his termination from the post of Assistant Teacher was illegal. According to
respondent No.1, the Tribunal has rightly held the termination to be illegal
and has correctly granted the relief of reinstatement with back wages.
22. In view of the aforesaid submissions, the following points arise for
consideration:
(i) Whether the appointment of respondent No.1 as an Assistant
Teacher was in accordance with the provisions of the Maharashtra
Employees of Private Schools (Conditions of Service) Regulation Act,
1977 and the Rules of 1981, and whether he became entitled to the
benefit of permanency upon completion of two years of service in
terms of the said provisions.
(ii) Alternatively, whether respondent No.1, who was initially
appointed as a Clerk in the year 1996 and thereafter appointed as an
Assistant Teacher, having rendered service from 1996 to 2003, could
have been terminated without following the due procedure
prescribed under Rule 26 of the M.E.P.S. Rules, 1981, and whether he
was entitled to protection of service and grant of permanency.
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23. While considering the aforesaid questions, it is necessary to examine
the legal position regarding the entitlement of respondent No.1 to claim
permanency. It is to be noted that respondent No.1 was not appointed on a
clear and sanctioned permanent post. However, even assuming that he
was appointed on a clear and sanctioned post, a similar question had
arisen before the Full Bench of this Court in Ramkrishna Chauhan and
Others vs. Seth D.M. High School and Others, reported in 2013 (2)
Bom.C.R. 481, wherein the following question was considered:
"Would it be open to the School Tribunal to hold that an employee
would be deemed to be on probation within the meaning of Section
5(2) of the Maharashtra Employees of Private Schools (Conditions of
Service) Regulation Act, 1977, on the ground that the appointment
was made in a clear and permanent vacancy, notwithstanding the
fact that the letter of appointment specifically stipulated that the
appointment had been made in a temporary capacity?"
24. The Full Bench of this Court, while considering the aforesaid issue,
referred to Section 5 of the Maharashtra Employees of Private Schools
(Conditions of Service) Regulation Act, 1977. The relevant portion of
Section 5 reads thus:
"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 the appointment of a person duly qualified to fill such vacancy:
[Provided that, unless such vacancy is to be filled in by
promotion, the Management shall, before proceeding to fill such
vacancy, ascertain from the Educational Inspector, Greater Bombay,
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2 [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 3 [except
4 [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 6 [Assistant
Teacher (Probationary)] shall be on probation for a period of three
years.]
[(2A) Subject to the provisions of sub-sections (3) and (4), 8
[Assistant Teacher (Probationary)] shall, on completion of the
probation period of three years, be deemed to have been appointed
and confirmed as a teacher.]
(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 any
time during the said period after giving him one month's notice 1 [or
salary 2 [or honorarium] of one month in lieu of notice].
(4) If the services of any probationer are terminated under
sub-section (3) and he is reappointed by the Management in the
same school or any other school belonging to it within a period of
one year from the date on which his services were terminated, then
the period of 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
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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."
25. This Court in the case of Ramkrishna Chauhan (Supra) also
analysed the form of appointment prescribed in Schedule 'D' in terms of
Rule 9(5) of the Maharashtra Employees of Private Schools (Conditions of
Service) Rules, 1981, which is similar to the appointment orders issued in
the present case. Upon such analysis, the Full Bench observed that neither
Section 5(1) nor Section 5(2) of the Act can be construed as prohibiting the
Management from making an appointment on a contractual or temporary
basis for a limited duration, even against a permanent vacancy, until a
suitable candidate is selected.
26. The Full Bench further observed that there is nothing in these
provisions to indicate that every appointment made by the Management in
relation to a permanent vacancy must necessarily be deemed to have been
made on probation for a period of two years. The statute does not create
any such legal fiction. On the contrary, the legal fiction operates only
in the case of a person who is expressly appointed on probation, in
which case such person would be deemed to have been confirmed
upon completion of the prescribed probationary period.
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27. In other words, the parties would be bound by the terms and
conditions stipulated in the letter of appointment, and there can be no
presumption that the appointment was made on probation unless the
appointment order itself expressly states so.
28. The Full Bench further observed that the provisions of the Act cannot
be construed as forbidding the Management from making a contractual or
temporary appointment against a permanent vacancy, if the circumstances
so warrant. Such power is implicit in the authority of the Management while
making appointments against a permanent vacancy. However, the Full
Bench sounded a note of caution that ordinarily, when an appointment is to
be made against a permanent vacancy, the Management is obliged to
follow the prescribed selection procedure. Only in situations where the
selection process cannot be taken to its logical conclusion, or where
suitable candidates are not available, the Management may be justified in
appointing a duly qualified person on a temporary basis for a limited
period.
29. The Full Bench also considered Rule 9 of the Maharashtra Employees
of Private Schools (Conditions of Service) Rules, 1981, and observed that
the substantive provision governing appointments is contained in Section 5
of the Act. The mere absence of a specific provision in Rule 9 regarding the
manner of making temporary or year-to-year appointments against a
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permanent vacancy does not affect the legal position. The Court held that
the Management possesses an implicit power to make contractual or
temporary appointments, even while making regular appointments against
permanent vacancies, in the absence of any express statutory prohibition
restraining it from doing so.
30. The Full Bench also considered Rule 10 of the Maharashtra
Employees of Private Schools (Conditions of Service) Rules, 1981, and
observed that the said rule does not in any manner curtail or whittle down
the implicit power of the Management to make contractual or temporary
appointments. The Court further examined the form of appointment
prescribed in Schedule 'D' of the Rules and held that the same does not
prohibit the Management from making an appointment on a temporary
basis for a limited duration, pending the selection of a duly qualified and
suitable candidate to fill a permanent vacancy.
31. Ultimately, the Full Bench answered the question referred to it in the
negative and held as under:
"28. Accordingly, we are inclined to answer the issue in the
negative. We hold that it is not open to the School Tribunal to
assume as of fact that the appointment made against a clear and
permanent vacancy is deemed to be on probation, within the
meaning of section 5 (2) of the Act. The School Tribunal cannot
disregard the terms and conditions of the letter of appointment, if it
expressly provides that the appointment is on temporary basis, for a
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limited term."
32. Coming to the facts of the present case, it is evident that the
appointment of respondent No.1 - employee as a Clerk was on an honorary
basis and not against a sanctioned post. Thereafter, the appointment of
respondent No.1 as an Assistant Teacher was made on a temporary basis.
The appointment orders issued for the respective academic years clearly
indicate that the appointment was purely temporary.
33. The appointment order for the academic year 2001-2002 specifically
states as under:
"2) Your appointment is purely temporary for a period of One
academic year months/year from 13-6-2001 in the leave/deputation
vacancy. After expiry of the above period your services shall stand
terminated without any notice."
Similarly, an appointment order (page 25 of the record) was issued
for the subsequent academic year 2002-2003, wherein Clause 2
specifically provides as under:
"2) Your appointment is purely temporary for a period of One
academic yer months/ years from 13-6-2002 in the leave/deputation
vacancy. After expiry of the above period your services shall stand
terminated without any notice."
34. A perusal of the aforesaid appointment orders clearly indicates that
the appointment of respondent No.1 - employee was purely temporary for
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one academic year at a time. Respondent No.1 was not appointed on
probation against a clear and sanctioned permanent post. In view of the
judgment of the Full Bench of this Court, which recognizes the right of the
Management to appoint an employee even against a permanent vacancy
on a temporary or contractual basis, no presumption of probation or
deemed confirmation can arise merely because the employee has
completed two years of service.
35. Therefore, the observation of the Tribunal that respondent No.1,
having worked for two years on the post of Assistant Teacher, was entitled
to be treated as confirmed and that his termination was illegal, cannot be
accepted.
36. The alternate submission advanced on behalf of respondent No.1
that he was initially appointed as a Clerk and was later promoted to the
post of Assistant Teacher also cannot be accepted. The record indicates
that respondent No.1 was working as a Clerk on an honorary basis, and
that too against a non-sanctioned post. Thereafter, he was appointed as an
Assistant Teacher on a temporary basis. The appointment orders clearly
show that the appointment as Assistant Teacher was for two separate
academic years, each for a period of one year. In such circumstances, it
cannot be said that respondent No.1 was promoted to the post of Assistant
Teacher.
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37. The reliance placed by respondent No.1 - employee on the decision
in Shri Suhas s/o Rangraoji More vs. State of Maharashtra and
Others (Writ Petition No.7706 of 2022, decided on 21/12/2023) is
misplaced. The said case pertained to employees who were promoted from
the post of Clerk to Assistant Teacher in terms of the Government
Resolution dated 10/06/2005. The challenge in that case was limited to the
legality of Clause 8 of the said Government Resolution, which provided for
payment of honorarium to Shikshan Sevaks.
38. In the said case, the petitioner was initially appointed as a Peon on a
clear and sanctioned permanent post. Upon acquiring the requisite
qualification, he was promoted as a Physical Education Teacher in the OBC
category. However, pursuant to Clause 8 of the Government Resolution
dated 10/06/2005, he was paid only an honorarium of Rs.8,000/- per
month, even though his last drawn salary as a Peon was approximately
Rs.43,000/- per month. The petitioner therefore contended that the
reduction of salary upon promotion was arbitrary and unjustified,
particularly when other similarly situated employees promoted to the post
of Assistant Teacher were receiving salary in the pay scale of Rs.38,600-
1,22,800 as per the 7th Pay Commission, and their promotions had also
been approved by the Education Officer.
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39. In the aforesaid factual background, this Court held that the
employee, upon promotion, was receiving a substantially lesser salary,
which caused serious prejudice to him. The Court further observed that
though the promotional post was termed as that of a Shikshan Sevak, it
was in substance a promotional post to the cadre of Assistant Teacher, and
therefore the employee was entitled to the regular pay scale and service
benefits attached to the post of Assistant Teacher. Accordingly, appropriate
directions were issued in the said matter.
40. However, the facts of the present case are clearly distinguishable.
Respondent No.1 was not holding a clear and sanctioned permanent post
as a Clerk, nor was he promoted to the post of Assistant Teacher. His
appointment as Assistant Teacher was purely temporary and for a limited
duration, as expressly stated in the appointment orders. Therefore, the
ratio of the aforesaid decision has no application to the facts of the present
case.
41. The above judgment does not come to the aid of respondent No.1 -
employee, who was initially appointed as a Clerk on an honorarium basis
and was thereafter specifically appointed as an Assistant Teacher for a
period of one year, followed by another appointment for a further period of
one year. In terms of the judgment of the Full Bench of this Court, as noted
above, there cannot be any deemed probation, and permanency cannot be
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granted when the appointment order clearly states that the appointment is
on a temporary basis for a limited duration.
42. Reference may also be made to the judgment of this Court in Akbar
Peerbhoy College and Others vs. Pramila N. Kutty and Others,
reported in 1998 (1) Bom.C.R.1, wherein this Court held that once the
appointment letter indicates that the appointment is purely temporary for a
specified period, no further notice is required for termination and, upon
completion of the period mentioned in the appointment order, the
appointment automatically comes to an end.
43. In the said judgment, this Court examined Rule 28(1) of the
Maharashtra Employees of Private Schools Rules, 1981, which provides that
the services of a temporary employee, other than one 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.
44. The Court clarified that the said Rule cannot be interpreted to mean
that even where the services of a temporary employee come to an end
automatically by efflux of time, as stated in the appointment order, the
Management is still obliged to give one calendar month's notice or to pay
one month's salary in lieu thereof. Rule 28(1) would apply in a situation
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where no period is specified in the appointment order of the temporary
employee and the Management seeks to terminate his services, or where a
period is specified but the Management intends to terminate the services
earlier than the stipulated period.
45. Rule 28(1) neither contemplates nor envisages a situation requiring
its compliance where the services of a temporary employee, other than on
probation, come to an end on the date specified in the appointment order
itself. Thus, in a case where the appointment of a temporary employee is
for a fixed period, and the services of such employee come to an end upon
the expiry of that fixed period, issuance of notice as contemplated under
Rule 28(1) is not required, nor is any separate termination order necessary,
because the appointment itself stands terminated automatically upon
expiry of the stipulated period.
46. Considering the above discussion, this Court holds that the
appointment of respondent No.1 - employee was purely temporary for a
period of one year each, i.e. for the academic years 2001-2002 and 2002-
2003, and the same was not on probation. As such, there can be no
deemed probation or permanency merely on completion of two years of
service.
47. This Court further holds that the appointment of respondent No.1
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cannot be treated as a promotion from the post of Clerk, as the employee
was earlier working on an honorarium basis and that too against a non-
sanctioned post of Clerk.
48. In view of the aforesaid reasons, the Writ Petition deserves to be
allowed.
49. Accordingly, the Rule is made absolute in the above terms. The
impugned Judgment and Order dated 07/01/2006 passed by the learned
Presiding Officer, School Tribunal, Solapur, in Appeal No.11 of 2004 is
quashed and set aside. No order as to costs.
( ARUN R. PEDNEKER, J. )
vj gawade/-.
