1. Rule. Heard Shri A.S. Jaiswal, the learned Senior Counsel, assisted by Shri G.R. Agrawal, Advocate, for the petitioners; Shri A.M. Deshpande, the learned AGP for the respondent No.2; and Shri P.S. Patil, the learned counsel for the respondent No.3.
2. This petition takes exception to the judgment and order dated 25-2-2013 passed by the School Tribunal, Amravati, allowing Appeal No.83 of 1997 filed by the respondent No.3-Mohd. Zaki Javed s/o Mohd. Ayyub challenging his termination from service with effect from 30-4-1997. The School Tribunal has set aside the order of termination dated 30-4-1997 and directed reinstatement of the respondent No.3 on the post of an Assistant Teacher with continuity in service. However, the prayer for back wages has been rejected. This petition is filed by the Management and the petitioner No.3, who was appointed as an Assistant Teacher in place of the respondent No.3.
3. The facts of the case are as under:
The petitioner-Management issued an advertisement in the local newspaper on 26-6-1996 inviting applications for the post of an Assistant Teacher. The respondent No.3 applied for the said post and after interview, he was selected by the competent Selection Committee for appointment to the post. Accordingly, by an order dated 30-6-1996, the respondent No.3 was appointed as an Assistant Teacher with effect from 1-7-1996 on temporary basis till the end of the academic session. This appointment of the respondent No.3 was approved by the Education Officer (Secondary), Zilla Parishad, Akola, by his order dated 23-11-1996, up to the end of the academic session with effect from 1-7-1996. At the end of the academic session, the petitioner was served with the order of termination dated 30-4-1997 stating the reason that his appointment was on purely temporary basis for a period of one session, which has come to an end on 30-4-1997. This was the subject-matter of challenge in Appeal No.83 of 1997 preferred by the respondent No.3 before the School Tribunal under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (œMEPS Act?).
4. The School Tribunal has accepted the contention of the respondent No.3 that his appointment was made in the manner prescribed for filling in the permanent vacancy as per sub-section (1) of Section 5 of the MEPS Act and the respondent No.3 was duly qualified possessing the qualifications of B.Sc. (Biology) and B.Ed. There was no reason for the Management to appoint the respondent No.3 on temporary basis only for one academic session and the appointment should, therefore, be treated as one on probation for a period of two years in terms of sub-section (2) of Section 5 of the MEPS Act.
5. The School Tribunal rejected the contention of the Management that the respondent No.3 had no right to post, as he was appointed purely on temporary basis for a period of one session; at the end of which, his services were terminated by way of simpliciter order of termination, upon the period stipulated therein coming to an end.
6. The alternate plea raised by the Management that the services of the respondent No.3 were found to be unsatisfactory and hence his termination should be deemed to have been made in exercise of the power under subsection (3) of Section 5 of the MEPS Act, was rejected holding that there was total non-compliance of the mandatory provisions of Rule 15 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (œMEPS Rules?) pertaining to communication of adverse remarks about unsatisfactory service and, therefore, the presumption, as contemplated under sub-rule (5) of Rule 15 that the work of the employee concerned was satisfactory during the period of probation, needs to be drawn.
7. Inviting my attention to the decision of the Full Bench of this Court in the case of RamkrushnaChauhan v. Seth D.H. High School and others, reported in 2013(2) Mh.L.J. 713, Shri Jaiswal, the learned Senior Counsel, assisted by Shri Agrawal, Advocate, for the petitioners, has urged that it is not open to the School Tribunal to hold that the employee would be deemed to be on probation within the meaning of Section 5(2) of the MEPS Act 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 was made in a temporary capacity.
8. Relying upon the said decision, Shri Jaiswal has also urged that once the employee accepts the order of appointment on purely temporary basis, he is estopped from challenging it in an appeal under Section 9 of the MEPS Act against the order of termination. According to him, it was open for the employee to have challenged the order of appointment in an appropriate forum instead of accepting it.
9. Shri Jaiswal further submits that even if it is accepted that the appointment is to be treated as on probation, still the School Tribunal has committed an error in holding that the Management was not justified in terminating the services as a probationer, as there was ample material placed on record to substantiate the plea that the service rendered by the respondent No.3 was not found to be satisfactory.
10. The main contentions are based upon the decision of the Full Bench in RamkrushnaChauhan's case, cited supra, and hence the questions, which fall for consideration in this writ petition, are what is the ratio and what is not the ratio of the decision of the Full Bench. The Full Bench has considered the following question which was referred to it.
œWould 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 has been made in a temporary capacity??
The question has been answered by the Full Bench in the negative, which is apparent from para 28 of the decision. It has been held 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 MEPS Act and the School Tribunal cannot disregard the terms and conditions of the letter of appointment, if it is expressly provides that the appointment is on temporary basis, for a limited term.
11. The ratio decidendi of the decision has to be found out only on reading the entire decision and not only a part of it. In case of any doubt arising from reading the decision, it can be resolved by assuming that the decision was delivered consistently with the provisions of law and therefore, the course of procedure in departure from or not in conformity with the statutory provisions cannot be said to have been intended or laid down by the Court unless it has been so stated specifically. The doubt can be resolved by looking into the other parts of the decision and not by reading a line here and there from the decision.
12. After going through the observations made in various paragraphs of the decision of the Full Bench, what is the ratio and what is not the ratio of the said decision, is summarized as under:
(i) A conjoint reading of subsections (1) and (2) of Section 5 of the MEPS Act shows that ordinarily when the selection process is commenced and the person duly found qualified is available and found suitable, the Management is under obligation to appoint him on probation to fill in the permanent vacancy.
(ii) The provision of subsection (2) of Section 5 of the MEPS Act is enabling and cannot be construed as creating a legal fiction to treat every appointment in a permanent vacancy as on probation or as taking away the implicit power of the Management to make a contractual or temporary appointment even in a permanent vacancy.
(iii) There is nothing in the provisions of subsections (1) and (2) of Section 5 of MEPS Act to indicate that every appointment in relation to a permanent vacancy must be deemed to have been made on probation for a period of two years irrespective of the fact that the appointment is made on temporary basis or for a fixed period.
(iv) If an order of appointment is on temporary basis or for a fixed period, it is not open for the School Tribunal to assume that the employee was deemed to be appointed on probation.
(v) An appointment on temporary basis in a permanent vacancy should be by way of an interim arrangement and exception where a person is found qualified but not suitable.
(vi) The Management cannot be permitted to take cover under the pretext of successively rejecting the candidates in the selection process on the ground of unsuitability and keeping on appointing the same person or different persons on contractual or temporary basis for a limited period in a permanent vacancy.
(vii) If the Management wants to appoint a duly qualified person selected in the manner prescribed to be appointed on temporary basis in a permanent vacancy, it must contemporaneously record its subjective satisfaction or tangible reasons as to why the candidate selected need to be appointed on temporary basis, so that the appropriate authority or the court of law can consider the challenge to the appointment on temporary basis instead of on probation.
(viii) The question as to whether an appointment on temporary basis or for a fixed period in a permanent vacancy is to be considered as on probation, is a question of fact to be pleaded and proved in appropriate proceedings on case to case basis and it will be open to record a finding of the colourable exercise of power against the Management, and an appropriate direction can be issued in such case.
(ix) It is not the ratio of the decision of the Full Bench in RamkrushnaChauhan's case that under no circumstances, the appointment made on temporary basis in a permanent vacancy can be treated as an appointment made on probation.
13. It is not possible to accept the contention that the ratio at serial Nos.(ii), (iii) and (iv) and the observations made in paras 18, 24, and 28 of the said decision are inconsistent or contradictory with the ratio at serial Nos.(i) and (v) to (viii) above and the observations made in the other parts of the decision. It cannot be assumed that while laying down the law in paragraphs 18, 24 and 28, the Full Bench was ignorant or was not aware as to the observations made in other parts of the decision or of the other provisions of law. On the contrary, the observations made in several parts of the decision have to be construed as consistent with each other and also with the provisions of law.
14. The object of the MEPS Act is to regulate recruitment and conditions of service of employees with a view to providing security and stability of service to enable them to discharge their duties towards the pupils effectively and efficiently. The precarious conditions of the employees in a private school prevailing prior to coming into force of the said Act, and the object of bringing into force of the said Act have been very succinctly and aptly highlighted by Dr. D.Y. Chandrachud, J. (as he then was the Judge of this Court) in his judgment in the case of MatoshriRamabai Ambedkar Vidyarthi Vasatigruh Trust and another v. Bharat D. Hambir and another, reported in 2009 (2) Mh.L.J. 121, in para 5A therein as under:
œ5A. Of late, there is a growing tendency of managements of private schools to appoint temporary employees from year to year, even though the vacancy is permanent and an adequate work load is available. This leads to grave uncertainty for teachers and places them at the mercy of the managements. The temporary appointment of a teacher who questions unethical practices of the management is promptly terminated. He or she who questions is cast away. Those who turn a blind eye or worse, become willing participants in a pattern of exploitation, are retained. This is a perversion of what was intended by the State legislation enacted in 1977. Placing teachers in a state of eternal uncertainty is destructive of the cause of education. In numerous cases before this Court, the grievance is that teachers of aided institutions are being subjected to extortionate demands by unscrupulous managements. Education has become a business and managements of private schools, with notable exceptions, are becoming pirates in the high seas of education. The interpretation of section 5 of the Act must be purposive “ one that would attain the statutory object and not lead to a negation of statutory intent. Once a permanent vacancy arises, a management is duty bound statutorily to fill it up by appointing a duly qualified candidate on probation. The vacancy must be advertised to allow equal opportunity to eligible candidates. A regular process of selection must be held. A duly qualified candidate has to be appointed. Temporary appointments can by definition be made when the vacancy is temporary. In such cases, the exigencies of education require that students must be imparted education and a vacancy even for a short period will cause serious hardship. But temporary appointments are an exception. Making temporary appointments the rule is to give a tool of subversion to the hands of unethical managements. Temporary appointments, followed as a practice become a tool of subversion because they perpetuate a regime of uncertainty about service, place the teacher in a position of perpetual fear and deprive teacher of the stability needed to contribute to the process of moulding young minds. This Court must emphasise with all the authority at its command that a subversion of statutory intent should not be allowed. The Court will not allow itself to be a mute by stander to the growing trend of a lack of ethics in the management of private schools. Judicial intervention is warranted in order to preserve the statutory intent.?
15. In the light of the aforesaid purpose of the MEPS Act, the provisions of Section 5 therein, need to be seen. The same are, therefore, reproduced below:
œ5. 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, 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 Shikshan Sevak shall be on probation for a period of two years. Subject to the provisions of subsections (4) and (5), he shall on completion of this probation period of two years, be deemed to have been confirmed.
Provided that, every person appointed as shikshan sevak shall be on probation for a period of three years.
(2A) Subject to the provisions of subsections (3) and (4), shikshan sevak 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 or salary or honorarium 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 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 subsection (2).
(4A) Nothing in subsection (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 subsection (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.?
16. Subsection (1) of Section 5 does not speak to the nature of appointment to be made whether temporary or for a fixed period or on probation or on permanent basis. It does not create an obligation to appoint a person on probation if he is appointed to fill in the permanent vacancy. Subsection (2) therein creates an obligation to appoint a person on probation for a period of two years in a permanent vacancy. This provision is held by the Full Bench to be enabling and it does not take away the implicit power of the Management to make appointment on temporary basis or for a fixed period even in a permanent vacancy. The Management may have several good reasons for making an appointment on temporary basis in a permanent vacancy, including that the post is reserved for a candidate belonging to a backward class category and no suitable candidate from such category is available, or that the Management wants to have a wider choice of the candidate, which is not available. Hence, the power under subsection (2) of Section 5 is held to be discretionary.
17. The exercise of discretion under subsection
(2) of Section 5 has to be by keeping in view the object of enactment and the exigencies of the administration. If the exercise of discretion is found to be arbitrary, unreasonable, capricious or is a colourable exercise of power to defeat the protection in service granted by the statutory provisions, then the Court is empowered even to invoke the principles of œlifting the veil? to find out the real reason of making an appointment on temporary basis, and if the action is not found to be bona fide, an appropriate direction can be issued to provide protection in service by treating the appointment on probation, even if it is shown to be on temporary basis or for a fixed period. This is the view propounded by the Full Bench, which is in conformity with the object and the provisions of the MEPS Act. The ratio of the decision of the Full Bench cannot be construed as creating absolute bar to the jurisdiction of the School Tribunal under Section 9 of the MEPS Act, to consider and decide the question as to whether in the given facts and circumstances of the case, an order of appointment on temporary basis or for a fixed period in a permanent vacancy cannot be treated as one on probation and the employee is entitled to protection in service, in a challenge to the order of termination. The question of law framed in para 2 of the judgment of the Full Bench answered in the negative in para 28 therein and the connected observations made in paras 18 and 24, therefore, need to be construed in this manner. Any other interpretation will be contrary to the object and the purpose of the Act and the provisions of Section 5, and shall be in dilution of the ratio of the decision.
18. Section 5 of the MEPS Act makes a clear distinction between the appointment in the permanent and temporary vacancies. Subsection (2) deals with the appointment to be made in a permanent vacancy, whereas subsection (5) deals with the appointment to be made in a temporary vacancy. If the appointment is found to be made in a temporary vacancy, obviously the presumption would be that it is a temporary appointment or for a fixed period. But there is no presumption that every appointment in a permanent vacancy should be deemed to be on probation for a period of two years, as stipulated in subsection (2). If the appointment is on a temporary basis or for a fixed period, then the School Tribunal shall not assume that it is an appointment on probation. This, however, does not mean that under no circumstances the appointment on temporary basis or for a fixed period can be treated as an appointment on probation as per subsection (2) of Section 5. It will depend upon the facts and circumstances of each case. In a given case, the School Tribunal may hold that though the order of appointment shows that it is on temporary basis or for a fixed period in a permanent vacancy, it should be treated as one on probation and it cannot be held that the School Tribunal has no jurisdiction to record any such finding and to issue the consequential directions to the Management or to grant any such declaration. The first contention of Shri Jaiswal, the learned Senior Counsel, is, therefore, rejected.
19. The Full Bench of this Court has considered two decisions of the Apex Court “ (i) in the case of Hindustan Education Society and others v. SK. Kaleem SK. Gulam Nabi and others, reported in (1997) 5 SCC 152; and (ii) in the case of BharatiyaGramin Punarrachana Sanstha v. Vijay Kumar and others, reported in 2003(1) Mh.L.J. 563. In para 26 of its decision, the Full Bench has held that Section 5 of the MEPS Act was considered in both these decisions. In the case of Hindustan Education Society, the appointment was against clear vacancy, but on temporary basis for a limited period of 11 months. The Court has held that it cannot be treated to be appointment on probation. In the case of BharatiyaGramin Punarrachana Sanstha, the Apex Court was considering the question of appointment on purely temporary basis, because of non-availability of reserved candidate to fill in permanent vacancy. In the decision in the case of BharatiyaGramin Punarrachana Sanstha, the Apex Court has further held that when the appointment is made on temporary basis, the provision of subsection (4) of Section 5 of the MEPS Act will not be attracted.
20. The law laid down by the Apex Court in the cases of Hindustan Education Society and BharatiyaGramin Punarrachana Sanstha, cited supra, cannot be disputed. However, it was not a case before the Apex Court as regards treating the appointment as on probation, though the order stipulates that it is on temporary basis or for a fixed period. The question of enforcement of obligation under subsection (2) of Section 5 in a case where there was compliance of subsection (1) of Section 5 of the MEPS Act and no further explanation was offered by the Management to make an appointment on temporary basis, was not involved. The question of jurisdiction of the School Tribunal under Section 9 of the MEPS Act to consider and decide the question as regards treating the appointment made on temporary basis or for a fixed period in a permanent vacancy, as one on probation in the given facts and circumstances of the case, was also not involved. Hence, both the said decisions cannot be considered to be an authority for the proposition involved in the present case. The power of the Management to appoint a person on temporary basis in a permanent vacancy, cannot be disputed, but the power of the School Tribunal under Section 9 of the MEPS Act to find out as to whether such appointment should be treated as one on probation, in the facts and circumstances of the case, cannot be questioned.
21. It is the burden of an employee to come before the School Tribunal with a definite case that he was selected and appointed to fill in the permanent vacancy and he was duly qualified for being appointed in a post in question. It is for the employee to make out a case for lifting of veil, or arbitrary, unreasonable, or capricious exercise of discretion by the employer in making an appointment on temporary basis or for a fixed period in a permanent vacancy to defeat the object and purpose of the Act, that is to provide security and stability in the employment. In such a case, the burden will shift upon the Management, which will have to point out the valid and tangible reasons to make such appointment and to justify the action by producing the relevant material on record. If the School Tribunal is not satisfied about the genuineness and validity of such reasons and material, it will have a jurisdiction to pass all such orders as are necessary to protect and provide security and stability to the employee concerned to attain the object of enactment.
22. Now turning to the facts of the present case, the order of appointment dated 30-6-1996 states that the respondent No.3 is appointed with effect from 1-7-1996 or from the date of his joining the duties, purely on temporary basis till the end of the academic session. It is not the case of the Management that the appointment of the respondent No.3 was made in a temporary vacancy and was, therefore, governed by subsection (5) of Section 5 of the MEPS Act. Though there is a simple denial of the fact alleged that the appointment was in a permanent vacancy, neither the advertisement issued on 26-6-1996, nor the order of appointment shows that the appointment was in a temporary vacancy. As a matter of fact, it is in the same vacancy that the petitioner No.3 was appointed by issuing a fresh advertisement after termination of the services of the respondent No.3. There is no dispute over the fact that the respondent No.3 was fully qualified for being appointed to the post and his appointment was made in the manner prescribed for making an appointment to the permanent vacancy, as stipulated in subsection (1) of Section 5 of the MEPS Act. Hence, no fault can be found with the view taken by the School Tribunal that there was total compliance of subsection (1) of Section 5 of the MEPS Act and the vacancy in which the respondent No.3 was appointed, was a permanent vacancy and not a temporary vacancy.
23. There is nothing placed on record by the Management showing that it had contemporaneously recorded the tangible reasons to make the appointment of the respondent No.3 on temporary basis. There is not even a single reason stated in the reply filed by the Management before the School Tribunal as to why the respondent No.3 was appointed on temporary basis. If the respondent No.3 was not found suitable for continuation on the post, even then it was open for the Management to terminate his services as a probationer on the ground of unsuitability by invoking its power under subsection (3) of Section 5 of the MEPS Act. The very purpose of putting an employee on probation is to judge his work, conduct, behaviour, suitability to continue him beyond a period of two years and for that purpose, it may not be necessary to make appointment on temporary basis. Be that as it may, in the absence of any such stand and production of relevant material on record, no fault can be found with the view taken by the School Tribunal to treat the initial appointment of the respondent No.3 as on probation.
24. When a specific question was put to Shri Jaiswal, the learned Senior Counsel for the petitioners, to point out any specific reason for making an appointment on temporary basis, or whether any material was placed before the School Tribunal in the form of the resolution of the School Committee appointing the respondent No.3 on temporary basis, he has urged that it is for the first time the Full Bench has in RamkrishnaChauhan's case laid down the requirement of recording reasons for making the temporary appointment and placing the material before the School Tribunal to justify the action. He submits that the judgment of the Full Bench should, therefore, be held as operating prospectively and not retrospectively. He further submits that the matter be remanded back to the School Tribunal for permitting the Management to place on record the sufficient material to justify the action of appointment on temporary basis.
25. It is not possible to accept the contention that the decision rendered by the Full Bench should be made operative prospectively. Shri Jaiswal, the learned Senior Counsel, does not dispute the position of law that the judgment always operates retrospectively when it declares the law. Apart from this, the School Tribunal had on earlier occasion dismissed the appeal by its judgment and order dated 4-1-2006. The respondent No.3 preferred Writ Petition No.6016 of 2006 before this Court, which was decided finally by the judgment and order dated 21-12-2011. In para 9, this Court had held as under:
"9] With the assistance of the learned counsel for the petitioner, I have gone through the reply filed by the respondents to the memo of appeal and there is no reason disclosed in the reply as to why the petitioner was appointed on temporary basis for a fixed period. In absence of such stand and following the ratio of the aforesaid judgment, it will have to be held that the appointment of the petitioner was in a permanent vacancy and it should have been made on probation for a period of two years. Merely because it is denied that the appointment of the petitioner was not in a permanent vacancy, that by itself is not enough to substantiate the stand. The tribunal has, therefore, committed an error in holding that the petitioner has failed to place on record any document to show that his appointment was in a permanent vacancy. The finding of the tribunal cannot, therefore, be sustained.?
The writ petition was partly allowed, concluding the point treating the appointment of the respondent No.3 to be deemed to have been made on probation for a period of two years. However, the matter was remanded back to the School Tribunal to record its finding on the question as to whether the termination can be justified on the ground that the conduct, performance and behaviour of the respondent No.3 was not found to be satisfactory by the Management.
26. The aforesaid decision was the subject-matter of challenge in Letters Patent Appeal No.80 of 2012 before the Division Bench, which was decided on 24-8-2012. The Division Bench in the Letters Patent Appeal did not disturb the order of remand but kept all the points open to be adjudicated in accordance with law. The relevant observations made by the Division Bench in its decision are reproduced below:
œAs it is apparent that the School Tribunal did not look into the plea of management about unsatisfactory performance, the learned Single Judge has rightly placed the matter before the School Tribunal. In the circumstances, no prejudice is going to be caused to the petitioners if all other contentions are kept open and the School Tribunal is decided to decide the matter afresh in the light of different judgments pressed into service before this Court. Hence, we partly allow the instant Letters Patent Appeal.
All adverse observations/findings against the present appellants are set aside. The School Tribunal to consider the entire challenge afresh in accordance with law.?
It is, therefore, apparent that the Management had an opportunity even at that occasion to amend its reply suitably and place on record the material to justify its action of not only appointing the respondent No.3 on temporary basis, but also that the services of the respondent No.3 were not found to be satisfactory, even if it was assumed that the appointment was on probation. The Management has failed to avail this opportunity in spite of knowing the view, which was expressed in the earlier judgment. It is clear that this Court had cautioned the Management about failure to place on record any material to justify its action on earlier occasion. The Management has failed to avail this opportunity. The prayer for remand cannot be accepted, as this would go on lingering the matter.
27. Turning to the question as to whether estoppels operates against the employee when he accepts the order of appointment on temporary basis in a permanent vacancy, the decision of the learned Single Judge of this Court in the case of President, Mahila Mandal, Sinnar and another v. SunitaBansidhar Patole, reported in 2007(2) Mh.L.J. 105, needs to be seen. Paras 15 and 17 of the said decision are relevant, and hence the same are reproduced below:
œ15. It was, however, sought to be contended that provisions of section 5(2) would be attracted only in case where the person is appointed on probation. Every appointment made under section 5(1) is deemed to be on probation till the person appointed completes period of two years and that is the intent behind subsection (2) of section 5 of the said Act. It is pertinent to note that phraseology of subsection (2) clearly discloses that every person appointed to fill permanent vacancy œshall be on probation? for a period of two years and it further provides that subject to the provisions of subsections (3) and (4) of section 5 œhe shall on completion of this probation period of two years be deemed to have been confirmed.?
œ17. The attention, however, on behalf of the petitioners was sought to be drawn to the orders of appointment issued every year and, therefore, it contended that no benefit under section 5(1) or (2) can be given to the respondent. The contention is devoid of substance. Merely because the management chooses to issue appointment orders every year, the appointment of the respondent ipso facto cannot become a temporary one. The Management is bound by the provisions of law comprised under M.E.P.S. Act in relation to the appointments of teachers. Once it is not in dispute that vacancy which was filled by the appointment of the respondent was a permanent vacancy, as such appointment was after following the procedure prescribed for appointing a person in permanent vacancy irrespective of the appointment letters being issued every year, the appointment of the respondent has to be construed as under section 5(1) of the said Act. Being so, the so called appointment letters issued after 1st July, 1988 are to be considered redundant and without any legal consequence. As already observed, it is also to be noted that the order of 1st July, 1988 nowhere discloses appointment was on temporary basis or for the period of one year.?
Once a case is made out about full compliance of subsection (1) of Section 5 of the MEPS Act and there is no justifiable reason found by the School Tribunal to appoint an employee on purely temporary basis or for a fixed period, it becomes a question of enforcement of the statutory obligation under subsection (2) of Section 5 of the MEPS Act. In such a situation, the question of operating estoppel would not arise in view of the aforesaid decision of this Court; otherwise, it would defeat the object and purpose of providing protection and stability to the employee in service.
28. As has been observed in the aforesaid decision, merely because the Management chooses to issue an order of appointment on year-to-year basis, that would not make ipso facto the appointment on temporary basis. The employee is left with no choice but to join the post. The occasion to claim appointment on probation arises only when the employee is terminated by acting upon such order of appointment and not prior to that. In such a case, as has been held earlier, the School Tribunal is competent to consider the question of nature of appointment as an ancillary issue. The second contention of Shri Jaiswal is, therefore, rejected.
29. Now coming to the last question of termination of the services of the respondent No.3 by the Management in exercise of its power under subsection (3) of Section 5 of the MEPS Act on the ground of unsatisfactory service, in the reply to the memo of appeal, the petitioner-Management came forward with a case that the respondent No.3 remained continuously absent without permission from 22-3-1997 to 30-4-1997 and has thereby abandoned the service on his own, under Rule 16 of the MEPS Rules. The reliance was also placed upon certain acts of misconduct or misbehaviour on the part of the respondent No.3. The School Tribunal has recorded the finding that there was total non-compliance of the mandatory provisions of Rule 15 of the MEPS Rules, and, therefore, the presumption about satisfactory service rendered by the respondent No.3 needs to be drawn.
30. Subsection (3) of Section 5 of the MEPS Act has already been reproduced above in earlier para. Rule 14 of the MEPS Rules deals with the assessment of employees' work, and Rule 15 deals with writing of confidential reports, etc. The confidential reports are to be written in the form prescribed under sub-rule (1) of Rule 15, those are to be reviewed under sub-rule (2), and thereafter adverse remarks, if any, are required to be communicated under sub-rule (3) before the end of August every year. Sub-rule (4) deals with the representation of the employee against the adverse remarks and the decision over it by the Managing Committee. Sub-rules (5) and (6) of Rule 15 being relevant, are reproduced below:
œ15. Writing of confidential reports etc.
(5) Failure to write and maintain Confidential reports and to Communicate adverse remarks to the employees within the period prescribed in sub-rule (3) shall have the effect that the work of the employee concerned was satisfactory during the period under report.
(6) Performance of an employee appointed on Probation shall be objectively assessed by the Head during the period of his probation and a record of such assessment shall be maintained.?
31. The aforesaid scheme was considered by the Apex Court in the case of Progressive Education Society and another v. Rajendraand another, reported in (2008) 3 SCC 310, and the relevant considerations are in paras 16 and 18, which are reproduced below:
œ16. The facts of this case are a little different from the normal cases relating to probation and the termination of the services of a probationer in that the satisfaction required to be arrived at under subsection (3) of Section 5 of the MEPS Act has to be read along with Rule 15 of the MEPS Rules, 1981 with particular reference to sub-rule (6) which provides that the performance of an employee appointed on probation is to be objectively assessed by the Head during the period of his probation and a record of such assessment is to be maintained. If the two provisions are read together, it would mean that before taking recourse to the powers vested under subsection (3) of Section 5 of the MEPS Act, the performance of an employee appointed on probation would have to be taken into consideration by the school management before terminating his services.?
œ18. This brings us to the next question regarding the sufficiency of the materials before the school management while purporting to pass the order of termination on 1-8-1994. As has been discussed, both by the School Tribunal and the High Court, the confidential report which has been produced on behalf of the school management does not inspire confidence on account of the different dates which appear both in Part I and Part II of the said report. Part I of the self-assessment form gives the particulars of the teacher concerned and the remarks of the reporting authority, namely, the Head Mistress of the school. The date in the said part is shown as 4-7-1994, whereas the date at the end of Part II, which is the form of the confidential report giving details of the teacher's performance is dated 24-6-1994, which appears to be in line with the date given of the forwarding letter written by the Head Mistress to the Secretary of the Society. To add to the confusion created by the different dates on the form, there is a third date which appears on Part I of the self-assessment form which shows that the documents were presumably forwarded to the management of the school on 6-8-1994, which is a date which is prior to the date of termination of the services of Respondent 1, namely, 181994.?
It is thus apparent that the provision of subsection (3) of Section 5 of the MEPS Act is required to be read with Rules 14 and 15 of the MEPS Rules, more particularly the requirement of sub-rule (6) of Rule 15 and the factors therein are required to be taken into consideration while exercising the powers under subsection (3) of Section 5. The Apex Court has held in para 19 of the said decision that the requirements of Rule 15(6) and Rule 14 had not been complied with prior to invocation of power by the school management. The termination of the probationer was, therefore, found to be vitiated.
32. In the facts of this case, there is total non-compliance of Rules 14 and 15. No material, as contemplated by sub-rule (6) of Rule 15 of the MEPS Rules, was produced before the School Tribunal. There is nothing on record to show that any adverse remark was communicated to the respondent No.3, as contemplated by sub-rule (3) of Rule 15. Hence, the only inference, which needs to be drawn on the basis of sub-rule (5) of Rule 15, is that the work of the employee concerned was found to be satisfactory during the period of probation. The stand of the Management is of the abandonment of service on one hand and the stand of misconduct, willful absence of duty, etc., is on the other hand. It is not substantiated. No enquiry was held in respect of the serious allegations of misconduct of varied nature. In view of this, no fault can be found with the view taken by the School Tribunal that the termination of the respondent no.3 was not as a probationer. The School Tribunal has not awarded any back wages and there is no petition preferred challenging the same by the employee.
33. In the result, there is no reason to interfere in the judgment and order passed by the School Tribunal. The petition is dismissed. Rule stands discharged. No order as to costs.
34. After pronouncing this judgment, Shri Agrawal, the learned counsel appearing for the petitioners, submits that the interim order passed by this Court be continued for a period of eight weeks so as to enable the petitioners to adopt further appropriate course of action.
35. The termination is of the year 1997. There was earlier round of litigation also. In view of this, I do not find any reason to continue the interim order passed by this Court. The prayer is rejected.