Talat Shikshan Mandal, Through Its President and Talat High School, Through Its Head Mistress Vs. Smt. Aqueela Bano Mohammad Moosa, - Court Judgment

Excerpt:
service - validity of appointment - section 5(2) maharashtra employees of private schools (conditions of service) regulation act, 1977 - respondent no. 1 appointed on a temporary basis and continued for a period of 10 years in place of respondent no. 3 whose services were terminated - respondent no. 1 was not appointed in regular manner - petitioner and respondent no. 3 entered into a compromise and sought dismissal of respondent no. 1. respondent no. 1 appealed before the school tribunal - the tribunal allowed the appeal of respondent no. 1 and directed that respondent no. 1 be reinstated with back wages and other benefits as respondent no. 1 acquired status of deemed permanency in view of provisions of section 5(2) of the meps act due to her completion of satisfactory probation period of two (2) years in pursuance to the appointment order - hence, the petition - whether respondent no. 1 was duly selected and appointed in the manner prescribed by law in a permanent and vacant post of assistant teacher and acquired status of deemed permanency in view of provisions of section 5(2) of the meps act due to her completion of satisfactory probation period of two (2) years in pursuance to the appointment order - held, the file produced by the respondent no. 2-education officer show that the proposal was moved by the petitioners for grant of approval to the appointment of the respondent no. 1 on probation - information given by respondent no. 2, along with the proposal show that she was appointed by following due procedure envisaged under section 9 of the meps rules - a copy of the advertisement published in daily newspaper was forwarded along with the proposal and the relevant columns filled up purport to show that approval was sought to the appointment on probation period of two years - initial burden of proof is on the employee to establish that the appointment was as prescribed under the rules - initial burden is discharged by respondent no. 1 - record produced and affidavit filed before school tribunal by the respondent no. 2-education officer shows that the approval was granted for the probation period - relevant information shows that the post was advertised - relevant information was furnished by the petitioners to the respondent no. 2 - hence, petitioners cannot contend that respondent no. 1 was not appointed in prescribed manner - petitioner cannot contend that there was no advertisement for the post, issued before she was given the appointment letter - once it is proved that the school teacher was posted against a permanent vacancy and completed more than two years' service, he/she will be deemed confirmed under section 5(2) of the act - mere non approval of the post would not be an embargo either on the management to make the assistant teacher permanent or on such a person, so appointed on the post, to claim permanency - petition dismissed - code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - whereas, it is expedient to regulate the recruitment and conditions of service of employees in certain private schools in the state, with a view to providing such employees security and stability of service to enable them to discharge their duties towards the pupils and their guardians in particular, and the institution and the society in general, effectively and efficiently; section 13 imposes penalty on management for failure to comply with tribunal's order. (7) the management shall reserve 34 per cent of the total number of posts of the teaching as well as nonteaching staff for the members of the scheduled castes, scheduled castes converts to buddhism, scheduled tribes, denotified tribes, nomadic tribes and other backward classes as follows, namely: if it is not possible to fill in the reserved post from amongst candidates, if any, who have applied in response to the advertisement or whose names are recommended by the employment exchange or the district social welfare officer or if no such names are furnished by the employment exchange or the district social welfare officer within a period of 15 days from the date of receipt of such requisition, the management may proceed to fill up the reserved post in accordance with the provisions of sub-rule (9). (9)(a) in case it is not possible to fill in the teaching post for which a vacancy is reserved for a person belonging to a particular category of backward classes, the post may be filled in by selecting a candidate from the other remaining categories in the order specified in sub-rule (7) and if no person from any of the categories is available, the post may be filled in temporarily on an year to year basis by a candidate not belonging to the backward classes. 3919/2002. for, the terms of the undertaking (exhl) clearly show that she undertook that if the appeal preferred by the respondent no. it is well settled that the writ petition cannot be regarded as continuation of the proceedings before the school tribunal. the division bench held that in order to claim benefits of a deemed permanency in view of section 5 (2) of the meps act, it is necessary that the teacher must have been duly selected and appointed on a clearly vacant post. she was unsuccessful party before the school tribunal. it was held that the termination of the services was bad in law. ' (1997)illj1071sc :(1997) 5 scc 152. in the fact situation of the given case, the apex court held that where the appointment order of the employee clearly mentioned that the appointment was purely temporary for period of 11 months, and after expiry of the above period, the service shall stand terminated without any notice, such appointment could not be considered as permanent.1. the petitioners impugn judgement and order rendered by learned presiding officer, school tribunal, aurangabad, in appeal no. 10/2008 whereby the respondent no. 1 was directed to be reinstated in service as assistant teacher with back wages and other consequential benefits w.e.f. date of her termination.2. the petitioners are minority educational institution and its high school. the school is being run on government aid basis. there are primary and secondary sections in the school. the primary section comprises of 5th to 7th standards whereas the secondary school section comprises of classes of 8th to 10th standards.3. indisputably, the respondent no. 3 - arshiya naaz was employed as assistant teacher in the primary section of the said school on substantive post. she was suspended from service w.e.f. 3rd april, 1999 owing to charges of certain misconduct committed by her. the substantive post became vacant due to her suspension. the respondent no. 1 - aqueela bano was temporarily appointed as assistant teacher for period of four (4) months between 3rd april, 1999 to 2nd april, 1999 on locum tenens basis. the initial appointment of respondent no. 1 - aqueela bano was thus temporary for short duration and in the vacancy caused due to suspension of respondent no. 3 - arshiya naaz.4. there is no dispute about the fact that the temporary appointment of the respondent no. 1 - aqueela bano was continued for further period of four (4) months due to time required for completion of the disciplinary inquiry against the respondent no. 3 - arshiya naaz. the respondent no. 3 - arshiya naaz was held guilty of the charges leveled against her as a result of the disciplinary inquiry. her services were terminated w.e.f. 15.11.1999 as per decision of the enquiry committee and the management. she filed appeal no. 259/1999 in the school tribunal, aurangabad. she sought interim stay to the order of termination, but it was not pressed into service and, therefore, the termination order continued in effect. the said appeal no. 259/1999 preferred by respondent no. 3 arshiya naaz was eventually dismissed by the school tribunal by its judgement and order dated 23rd july, 2001. she challenged the said judgement of the school tribunal by filing writ petition no. 3919/2002 in this court. the petitioners and the respondent no. 3 - arshiya naaz entered into compromise in the writ petition no. 3919/2002. it was agreed between them that she would be reinstated in service without payment of back wages. the fallout of such terms of compromise was that by order dated 29032008, the services of the respondent no. 1 - aqueela bano came to be terminated.5. feeling aggrieved by the termination order, the respondent no. 1 - aqueela bano approached the school tribunal, aurangabad by filing appeal no. 10/2008. her appeal has been allowed vide the impugned judgement. hence, the petition by the petitioners.6. briefly stated, case of the respondent no. 1 - aqueela bano before the school tribunal was that she was regularly appointed vide order dated 29.11.1999 after termination of the respondent no. 3 - arshiya naaz for two (2) years' period commencing from 01.12.1999 till 30.11.2001 on probation. she continued to work as assistant teacher to the satisfaction of the petitioners during the relevant period. she acquired status of a deemed permanent assistant teacher in view of section 5(2) of the maharashtra employees of private schools (conditions of service) regulation act, 1977 (for short, 'the meps act'). she continued to officiate as an assistant teacher till the date of the termination. she was in continuous service of about ten (10) years as assistant teacher without any stigma. the respondent no. 2 education officer approved her appointment as assistant teacher in as much as it was appointment validly made in the permanent and vacant post which was available due to termination of the services of the respondent no. 3 - arshiya naaz.7. the respondent no. 1 - aqueela bano alleged that the staff members agitated certain grievances regarding financial bunglings of the petitioners and nonpayment of proper salaries to the school teachers and others. the petitioner no. 1 was, therefore, served with a show cause notice as to why an administrator be not appointed to monitor the functioning of the schools run by the minority educational institution. the petitioners were annoyed due to agitation of the staff members and some untoward incident occurred wherein some of the male and female staff members were manhandled. the news items of such untoward instances were published in various newspapers. consequently, the petitioners, out of vendetta against the respondent no. 1 - aqueela bano, unlawfully entered into the compromise with the respondent no. 3 - arshiya naaz in the proceedings of the writ petition. she was not a party to the writ petition, yet, had given an application for intervention when she learnt about proposed terms of compromise between the petitioners and the respondent no. 3 - arshiya naaz. the learned single judge of this court disposed of the writ petition no. 3919/2002 without touching upon rights of the respondent no. 1 - aqueela bano. the compromise between the petitioners and the respondent no. 3 - arshiya naaz was a ploy to oust the respondent no. 1 - aqueela bano who had participated in the agitation against the petitioners. she asserted that while the appeal preferred by the respondent no. 3 - arshiya naaz was pending before the school tribunal, an undertaking was obtained from her subsequently by exercising undue influence and pressure wherein she was compelled to state that her appointment as assistant teacher was subject to result of the proceedings before the school tribunal. she alleged that the under taking was not given by her out of free will and volition. she further asserted that anyhow, that undertaking was only for period up till decision of the school tribunal. thus, according to her, her termination from the service was vitiated by malafides and illegality committed by the petitioners. she was not a temporary servant at the material time and could not have been shown exit without following due procedure of law. hence, she challenged the order of termination by filing the appeal no. 10/2008.8. the substance of the defence put forth by the petitioners was that the appointment of the respondent no. 1 - aqueela bano was temporary during the period of vacancy available as a result of suspension of the respondent no. 3 - arshiya naaz and it continued to be of temporary character because of the extended period of her suspension. the petitioners submitted that even after the termination of the respondent no. 3 - arshiya naaz, the respondent no. 1 - aqueela bano was appointed only on temporary basis because the vacancy was not available on permanent basis since the respondent no. 3 - arshiya naaz had preferred appeal no. 259/1999 against order of her termination. the petitioners further asserted that the undertaking was voluntarily given by the respondent no. 1 - arshiya bano and, therefore, her services depended on the result of the proceedings before the court. the petitioners averred that the respondent no. 1 - aqueela bano was not appointed by publication of any advertisement and in regular manner and, therefore, was ineligible to claim any right on the post. she was bound by final outcome of the proceedings of the writ petition no. 3919/2002 because she was given to understand that her appointment was purely temporary in the vacancy caused by termination of the respondent no. 3 - arshiya naaz and was subject to final outcome of the court proceedings. the petitioners and the respondent no. 3 - arshiya naaz pleaded that it was the prerogative of the petitioners to enter into compromise and reinstate the respondent no. 3 - arshiya naaz about which the respondent no. 1 - aqueela bano could have no right to raise any objection. the petitioners and the respondent no. 3 - arshiya naaz, therefore, sought dismissal of the appeal no. 10/2008 filed by the respondent no. 1 - aqueela bano. 9. the respondent no. 2 - education officer supported case of the respondent no. 1 - aqueela bano before the school tribunal and also in this court. it is alleged that the approval was given to substantive appointment of the respondent no. 1 - aqueela bano as per information furnished by the petitioners. it was submitted by the respondent no. 2 - education officer that the respondent no. 1 - aqueela bano has acquired status of deemed permanency due to her continuous service for more than two (2) years' period and as she has completed the probation period in satisfactory manner. the education officer, therefore, expressed opinion that termination of services of the respondent no. 1 - aqueela bano was violative of the provisions of the meps act and the rules framed thereunder.10. the learned presiding officer of the school tribunal came to the conclusion that the respondent no. 1 - aqueela bano was appointed in the substantive post which was vacant as a result of termination of the respondent no. 3 - arshiya naaz. the school tribunal held that the respondent no. 1 - aqueela bano acquired status of a deemed permanent employee due to satisfactory completion of the probation period in view of section 5(2) of the meps act. the appeal was accordingly allowed and the respondent no. 1 - aqueela bano was directed to be reinstated along with full back wages from date of the termination along with consequential benefits.11. challenging the impugned judgement and order, rendered by the school tribunal, learned senior counsel mr. p.m. shah strenuously argued that the termination of the respondent no. 1 - aqueela bano is quite legal and proper. he would submit that there was no legal obligation on the petitioners to hold any inquiry against the respondent no. 1 - aqueela bano before her termination in as much as all along, her appointment was of temporary nature. mr. shah would submit that unless the appointment of the respondent no. 1 - aqueela bano was after publication of an advertisement and selection by the school committee, she could not claim any right over the post. it is pointed out that as per rule (10) of the maharashtra employees of private schools (conditions of service) rules, 1981 (for short, 'the meps rules'), the nonpermanent posts could be in two (2) categories viz. temporary or on probation. mr. shah would submit that appointment of the respondent no. 1 - aqueela bano was only on locum tenens basis throughout the period of her service because ouster of the respondent no. 3 - arshiya naaz had not received final stamp due to pendency of writ petition no. 3919/2002. mr. shah would submit that the school tribunal wrongly assumed that the post was permanently available due to termination of the respondent no. 3 - arshiya naaz. he would submit that the respondent no. 1 - arshiya bano was not appointed by following provisions of rule (9) of the meps rules. he contended that the tribunal illogically correlated a copy of the advertisement with the appointment of the respondent no. 1 - aqueela bano though she was not appointed in pursuance to such advertisement. he would submit that the appointment letter dated 29.11.1999 (exhk) was misconstrued by the school tribunal and in fact, it was a manipulated letter issued in connivance with the head mistress of the school. my attention was invited to the undertaking given by the respondent no. 1 - aqueela bano. it is argued that she was bound by the terms of the said undertaking and, hence, cannot turn volt face to lay hands on the post which was filled up due to reinstatement of the respondent no. 3 - arshiya naaz. it is argued that the reinstatement with full back wages could not have been granted unless the employee had proved that she was not gainfully employed during the relevant period. mr. shah would submit that the impugned judgement and order rendered by the school tribunal is liable to be quashed, particularly in view of a division bench judgement of this court in 'priyadarshini education trust and ors. v. ratis (rafia) bano d/o abdul rasheed and ors.' : (2007)109bomlr1663 : 2007 (6) bom. c.r. 79 : 2007 (6) mh.l.j. 667. as against this, mr. deshpande, learned counsel appearing for the respondent no. 1 - aqueela bano, supports the impugned judgement and order. the learned a.g.p. mr. tele also supports the impugned judgement. mr. nagargoje, learned counsel for the respondent no. 3 - arshiya naaz, however, supports the arguments advanced by mr. p.m. shah in support of the petition. 12. questions which fall for determination are:(i) whether the respondent no. 1 - aqueena bano was duly selected and appointed in the manner prescribed by law in a permanent and vacant post of assistant teacher ?(ii) whether the respondent no. 1 - aqueena bano acquired status of deemed permanency in view of provisions of section 5(2) of the meps act due to her completion of satisfactory probation period of two (2) years in pursuance to the appointment order dated 29.11.1999 (exhibitk) ?(iii) whether the compromise was brought about by the petitioners and respondent no. 3 - arshiya naaz in collusion with each other so as to malafidely cause termination of the respondent no. 1 - aqueena bano and as such, the same is not binding on her rights 13. before i proceed to consider the above questions and the rival contentions, it would be necessary to examine the scheme of the maharashtra employees of private schools (conditions of service) regulation act, 1977 (for short, 'the meps act').the scheme of the meps act may be briefly noticed.the preamble of the act reads thus:whereas, it is expedient to regulate the recruitment and conditions of service of employees in certain private schools in the state, with a view to providing such employees security and stability of service to enable them to discharge their duties towards the pupils and their guardians in particular, and the institution and the society in general, effectively and efficiently;and whereas, it is further expedient in the public interest to lay down the duties and functions of such employees with a view to ensuring that they become accountable to the management and contribute their mite for improving the standard of education;( 15 ) and whereas, it is also necessary to make certain supplemental, incidental and consequential provisions; it is hereby enacted in the twenty eighth year of the republic of india as follows :the act was to come in force on such date as the state government might by notification in the official gazette, decide to appoint. it is not in dispute that the act came into force with effect from july 15, 1981 which was 'appointed date' as defined in clause (1) of section 2. the expression 'employee' is defined as any member of teaching and nonteaching staff of a recognized school. the terms 'private school' and 'school' have been defined in clauses (20) and (24) of section 2 respectively and they read as under:(20) 'private school' means a recognized school established or administered by a management, other than the government or a local authority'.( 16 ) (24) 'school' means a primary school, secondary school, or higher secondary school, or any part of any such school, a junior college of education, or any other institution or part thereof which imparts education or training below the degree level including any institution which imparts technical or vocational education.the term 'recognized' is defined in clause (21) of section 2 as recognized by the director or an officer authorized by him or by the state board.14. section 3 declares that the provisions of the act 'shall apply to all private schools in the state of maharashtra', whether receiving any grant-in-aid from the state government or not. section 4 prescribes terms and conditions of service of employees of private schools. section 5 lays down obligations of management of private schools. section 8 requires the state government to constitute one or more tribunals to be called 'school tribunals' and defines jurisdiction of each tribunal. section 9 confers right of appeal to tribunal by employees of private schools. section 10 deals with powers and procedure of the tribunal. under section 11, the tribunal can issue directions and grant appropriate relief to the persons aggrieved. section 12 makes the decision of the tribunal final and binding. section 13 imposes penalty on management for failure to comply with tribunal's order. under section 16, the state government is empowered to make rules for carrying out the purposes of the act.15. in exercise of the powers conferred under the act, the state of maharashtra framed rules known as 'the maharashtra employees of private schools (conditions of service) regulation rules, 1981. they inter alia, provide qualifications, appointment of teaching staff, maintenance of seniority list and other matters connected with service conditions of employees. they also lay down procedure for holding inquiries and imposition of penalties.rule (9) of the meps rules reads as follows:9. appointment of staff. (1) the teaching staff of the school shall be adequate having regard to the number of classes in the school and the curriculum including alternative courses provided and the optional subjects taught therein.(2) appointments of teaching staff (other than the head and assistant head) and those of nonteaching staff in a school shall be made by the school committee:provided that, appointments in leave vacancies of a short duration not exceeding three months, may be made by the head, if so authorised by the school committee.(3) unless otherwise provided in these rules for every appointment to be made in a school, for a teaching or a nonteaching post, the candidates eligible for appointment and desirous of applying for such post shall make an application in writing giving full details regarding name, address, date of birth, educational and professional qualifications, experience, etc., attaching true copies of the original certificates. it shall not be necessary for candidates other than those belonging to the various sections of backward communities for whom posts are reserved under sub-rule (7) to state their castes in their applications.(4) the age limit for appointment to any post in a school shall be as follows, namely:(a) for an appointment to be made to any post in a primary school, a candidate shall not be less than 18 years of age and more than 28 years of age, and in the case of candidate belonging to the backward classes he shall not be more than 33 years of age:provided that, upper age limit may be relaxed in case of women, ex servicemen and persons having previous experience with the previous permission of the deputy director.(b) for an appointment to be made to any post in any school other than primary school, a candidate shall not be below the age of 18 years.(5) a letter of appointment order in the form in schedule 'd' shall be issued to a candidate appointed to the post. a receipt in token of having received the appointment order shall be obtained from the candidate appointed.(6) every employee shall within three months of his appointment, undergo medical examination by a registered medical practitioner named, if any, by the management or otherwise by any registered medical practitioner. the expenses of medical examination shall be borne by the management. the appointment shall be conditional pending certificate that he is free from any communicable disease and that he is physically fit to be so appointed.(7) the management shall reserve 34 per cent of the total number of posts of the teaching as well as nonteaching staff for the members of the scheduled castes, scheduled castes converts to buddhism, scheduled tribes, denotified tribes, nomadic tribes and other backward classes as follows, namely:(a) ***** (b) *****(c) *****(d) *****(e) *****(8) for the purpose of filling up vacancies reserved under sub-rule (7), the management shall advertise the vacancies in at least one newspaper having wide circulation in the region and also notify the vacancies to the employment exchange of the district and to the district social welfare officer requisitioning the names of qualified personnel, if any, registered with them. if it is not possible to fill in the reserved post from amongst candidates, if any, who have applied in response to the advertisement or whose names are recommended by the employment exchange or the district social welfare officer or if no such names are furnished by the employment exchange or the district social welfare officer within a period of 15 days from the date of receipt of such requisition, the management may proceed to fill up the reserved post in accordance with the provisions of sub-rule (9).(9)(a) in case it is not possible to fill in the teaching post for which a vacancy is reserved for a person belonging to a particular category of backward classes, the post may be filled in by selecting a candidate from the other remaining categories in the order specified in sub-rule (7) and if no person from any of the categories is available, the post may be filled in temporarily on an year to year basis by a candidate not belonging to the backward classes. appointment of a candidate other than backward class candidate in a vacancy reserved for backward class candidates shall not be considered to be an appointment made to a permanent post in terms of section 5(2) of the act until dereservation of the vacancy.(b) in the case of a nonteaching post, if a person from the particular category of backward classes is not available, the management shall make efforts with regular intervals to fill up the post within the period of five years and the post shall not be filled up during that period by appointing any other person who does not belong to the respective category of backward class.(10)(a) the management shall reserve 24 per cent of the total number of posts (or vacancies) of heads and assistant heads for the members of scheduled castes, scheduled castes converts to buddhism, scheduled tribes, denotified tribes and nomadic tribes as follows, namely:(i) *****(ii) *****(iii) *****(b) in case it is not possible to fill in the post of a head or assistant head for which a vacancy is reserved for a person belonging to the castes and tribes specified in clause (a), the post may be filled in by promoting a candidate from the other remaining categories in the order specified in clause (a), so however that the percentage of filling up such vacancies doe snot exceed the limit laid down for each such category. if candidates belonging to any of these categories are not available, then the vacancy or vacancies (i) of the head may be filled in by promoting any other teacher on the basis of seniority cummerit after obtaining previous approval of the appropriate authority;(ii) of the assistant head shall be kept unfilled for a period of three years; unless such vacancy or vacancies could be filled in by promotion of any teachers belonging to such castes or tribes becoming available during that period.15. a plain reading of section 5(2) of the meps act would make it amply clear that every person appointed to fill up a permanent vacancy would be on probation for a period of two (2) years. he must be deemed to have been confirmed after completion of the period of two (2) years subject to the provisions of sub-sections (3) and (4) of section 5. 16. at the outset, it may be noticed that initial appointment of the respondent no. 1 - aqueena bano was, no doubt, purely on temporary basis during the period of pendency of disciplinary inquiry initiated against the respondent no. 3 - arshiya naaz. the said appointment was in pursuance to resolution of the school committee which was taken on 27.03.1999 (exhd). the temporary appointment was admittedly approved by the respondent no. 2 - education officer. the post became vacant as a result of termination of the respondent no. 3 - arshiya naaz w.e.f. 15.11.1999 as per the order dated 11.11.1999. the respondent no. 3 - arshiya naaz was found guilty of the charges leveled against her. the record reveals that on 29.11.1999, the respondent no. 1 - aqueela bano was appointed for period of two (2) years between 01.12.1999 to 30.11.2001 on probation. this appointment order issued under rule 9(5) of the meps rules (exhk) is the most important document. this appointment order does not show that she was appointed subject to decision of the school tribunal or other court proceedings. no such condition was envisaged in the said order. though it was contended that the said order of appointment (exhk) was manipulated in connivance with the head mistress, yet, there is no scintilla of evidence to infer any collusion between the head mistress and the respondent no. 1 - aqueela bano in issuance of the said order. i have gone through the relevant record produced by the education officer. it is pertinent to note that though the appointment order was issued on 29.11.1999 (exhk), yet, the undertaking was obtained from the respondent no. 1 - aqueela bano on or about 6thdecember, 2000 (exhl). the text of the said undertaking reveals that she agreed that her appointment was subject to the decision of the school tribunal. even assuming that she voluntarily gave such undertaking in the midst of the two (2) years' period of probation, then also, the undertaking cannot be stretched to the extent of holding that she was also bound by the terms of the compromise between the petitioners and the respondent no. 3 - arshiya naaz in writ petition no. 3919/2002. for, the terms of the undertaking (exhl) clearly show that she undertook that if the appeal preferred by the respondent no. 3 - arshiya naaz would be allowed by the school tribunal and her reinstatement would be ordered, then she will vacate the office without any demure. it is well settled that the writ petition cannot be regarded as continuation of the proceedings before the school tribunal. needless to say, the undertaking lost its utility for the petitioners soon after the dismissal of the appeal no. 259/1999 preferred by the respondent no. 3 - arshiya naaz. secondly, the writ petition no. 3919/2002 has not been decided on merits, nor the respondent no. 1 - aqueela bano was made a party to the proceedings of the said writ petition no. 3919/2002. this court disposed of the said writ petition in view of terms of the compromise between the respondent no. 3 - arshiya naaz and the petitioners without expressing any opinion as regards legal impact of such compromise on rights of respondent no. 1 - aqueela bano.17. core issue involved herein is whether the rights which had accrued to the respondent no. 1 - aqueela bano could be extinguished due to mutual settlement between the petitioners and the respondent no. 3 - arshiya naaz. it is pertinent to note that the relevant record, particularly, the file produced by the respondent no. 2 - education officer, for perusal of this court, goes to show that the proposal was moved by the petitioners for grant of approval to the appointment of the respondent no. 1 - aqueela bano on probation. the information given along with the proposal goes to show that she was appointed by following due procedure envisaged under section 9 of the meps rules. a copy of the advertisement published in daily newspaper was forwarded along with the proposal and the relevant columns filled up purport to show that approval was sought to the appointment on probation period of two (2) years. the initial burden of proof is no doubt on the employee to establish that the appointment was as prescribed under the rules. the initial burden is discharged by the respondent no. 1 - aqueela bano in view of the record produced by the respondent no. 2 - education officer. not only that, but the education officer filed affidavit before the school tribunal to the effect that the approval was granted for the probation period. the relevant information in column no. 3 (page 148) shows that the post was advertised in daily aurangabad times dated 17.06.1999. the relevant information was furnished by the petitioners to the respondent no. 2 - education officer. the petitioners cannot be allowed to turn volt face and now contend that the respondent no. 1 - aqueela bano was not appointed in prescribed manner and that there was no advertisement for the post, issued before she was given the appointment letter dated 29.11.1999 (exhk). the petitioners, even though it is stated that, furnished wrong information to the respondent no. 2 - education officer, then also, cannot be allowed to submit that her appointment was improper and illegal. the appointment was approved for period of two (2) years on 25.08.2001. the petitioners cannot be permitted to take advantage of their own wrong. the principle 'injuria propria non cadet in beneficium faciendis' is squarely applicable to the fact situation of the present case. 18. in 'priyadarshini education trust and ors. v. ratis (rafia) bano abdul rasheed and ors.' 2007 (6) bom.c.r. 79, a division bench of this court considered preamble and proceeded to interpret the expression 'in the manner prescribed' as used in sub-section (1) of section 5 of the meps act. it is observed : referring to proviso to sub-section (1) of section 5 of the act, it is evident that, as soon as there is vacancy, the management is required to communicate with the education officer, zilla parishad. the vacancy is to be filled in, from the list of surplus persons maintained by the education officer. this is the first indication of control of the state over the recruitment and appointment of staff, even of private schools. even on reference to sub-rule (3) of rule 9, the candidate eligible for appointment and desirous of applying for such post, is required to apply in writing, by giving full details. we are unable to visualise a possibility of deserving candidate knowing about the vacancies in any private schools, unless the school invites applications by advertisement. the persons, who may learn about the management or at the most staff members. if argument of advocate shri kazi is to be accepted, it will tantamount to accepting that rule 9 is drafted in such a manner as to promote nepotism, so far as appointments of open category candidates to teaching and nonteaching posts in private schools are concerned. if the argument of advocate shri kazi is to be accepted, rule 9 will have to be read in a fashion, where reserved category candidates are required to enter the service by competing amongst themselves, but an open category candidate may be in a position to seek an appointment without competing. legislature could not have intended to prescribe a manner of recruitment which would discriminate between reserved and unreserved categories in respect of manner in which they can seek appointments. a legislation making it easier for a reserved candidate, may be justified, in view of article 15(4) of the constitution. but, a reverse position cannot be justified by any line of argument.19. the controversy involved in 'priyadarshini education trust and others' (supra) pertained to contextually different question. whether the same procedure was required to be followed for filling up the reserved post and the open category post was the question essentially dealt with by the division bench. the fact situation was also on different footings. the division bench held that in order to claim benefits of a deemed permanency in view of section 5 (2) of the meps act, it is necessary that the teacher must have been duly selected and appointed on a clearly vacant post. it is observed that although the teacher had claimed appointment from 15.06.1987, yet, she was not able to produce any appointment letter in this behalf. in that case, the division bench noticed that the learned single judge had drawn adverse inference against the management because the management could not produce service record inspite of time given by the school tribunal.20. in the case before me, the respondent no. 1 -aqueena bano discharged the initial burden by producing the appointment letter dated 29.11.1999 (exhk) which, it need not be reiterated, reveals that she was appointed on probation for period of two (2) years. she discharged initial burden to prove that her appointment was in the vacant post and in the prescribed manner as would be evident from the record produced by the respondent no. 2 - education officer. one cannot be oblivious of the u-turn taken by the petitioners after a prolonged litigation initiated by the respondent no. 3 - arshiya naaz. she was unsuccessful party before the school tribunal. she was found guilty of serious charges of misconduct and, hence, was terminated from service. it has come on record that the respondent no. 1 - aqueela bano had joined protest initiated by the staff members regarding less payment received by them. it was their contention that the management used to pay them only rs. 2000/- per month. instead of approximately rs. 12,000/per month towards the emoluments. she had filed a criminal case against the management in 2007. it is obvious that she had become 'persona non grata' because the police had raided school premises and residence of the president of the school after the criminal complaint. the director of education had also taken cognizance of the agitation commenced by the group of school teachers and the employees against arbitrariness of the management. it appears that in view of such developments, the management decided to show exit to the respondent no. 1 - aqueela bano by joining hands with the respondent no. 3 - arshiya naaz. i am told that there were juniors of the respondent no. 1 - aqueela bano viz. samina kausar, nazimunnisa, sabaha, etc. available as on the date of issuance of the termination order to her. the principle 'last come first go' was not followed while terminating the services of the respondent no. 1 - aqueela bano. consequently, it will have to be inferred that intention of the petitioners to enter into the compromise with the respondent no. 3 - arshiya naaz was of malafide character and tainted with the only intention to oust the respondent no. 1 - aqueena bano from service. hence, she cannot be held bound by said terms of compromise between the petitioners and the respondent no. 3 - arshiya naaz.21. what appears from the record is that transcript of the advertisement issued by the petitioners has not been correctly furnished. the vernacular text (exhs) of the advertisement dated 17.06.1999 shows that the posts were for the schools situated outside city of aurangabad. the advertisement was published in urdu script in daily newspaper 'aurangabad times'. the correct translation thereof shows that it was for the posts in the schools at aurangabad and outside aurangabad. thus, the petitioners have made attempt to furnish incorrect translation of the document, namely, the advertisement published in the urdu daily newspaper 'aurangabad times'. this conduct of the petitioners is unfair.22. reliance is placed on certain observations in 'national education and social trust v. state of maharashtra and ors.' : 2008(4)mhlj778 : 2008 (4) mh.l.j. 778. in the given case, the learned single judge of this court held that the appointment of the school teacher must specify the requirements of section 5 (1) of the meps act. in that case, the appointment letters issued to the school teacher did not indicate that he went through any selection process. the advertisements released by the management were also not on record. in 'secretary, chowke panchkiroshi shikshan prasarak mandal v. dilip a. narvekar and ors.' 1992 ii clr 672, services of the assistant teacher were terminated without giving a month's notice and without payment of one month's salary in lieu of the notice. it was held that the termination of the services was bad in law. it was, however, held that grant of reinstatement along with back wages was not proper because the employee was appointed for a specified period.23. in 'kaduba babulal gavane v. the state of maharashtra and anr.' (writ petition no. 2202 of 2008), a division bench of this court considered petition filed by employee of pratishthan education society's pratishthan college, paithan (district aurangabad). the division bench was concerned with limited issue pertaining to claim of the employee as member of nomadic tribe. the educational institution had decided to withdraw the order of termination as per the compromise. it has been observed by the divison bench as follows : it is no doubt true that compromise is contract between the parties on which is super imposed the seal of the court. law itself provides that a court will not sanction compromise terms if they are contrary to law. the fact that this court sanctioned the compromise presupposes that the compromise terms were legal and valid. even though the respondents were not parties to the said compromise terms they ought to show that the compromise is contrary to law. nothing to that effect has been pointed out to us.it is difficult to appreciate as to how the above observations are of any assistance to the case of the present petitioners. in the fact situation of the present case, the terms of the compromise only reflect contract between the petitioners and the respondent no. 3 - arshiya naaz. the oblique intention of the parties to the said contract was to seek ouster of the respondent no. 1 - aqueela bano. the mala fide intention at the bottom of the said terms of the contract, would show that it was brought about in order to gain unfair advantage over the precarious position in which the respondent no. 1 - aqueela bano was caught. her legal rights could not be scuttled when she was not made party to the writ petition no. 3919/2002 filed by respondent no. 3 arshiya naaz nor the case was decided on merits. this court did not pass any interim order as against the respondent no. 1 - aqueela bano in the said writ petition to bind her from claiming the post. as stated earlier, the undertaking given by her was no more available during pendency of the said writ petition and, therefore, she had acquired status of deemed permanency in view of section 5 (2) of the meps act due to her continuous service of more than two (2) years even after filing of the said writ petition. the services of the respondent no. 1 - aqueena bano could not be abruptly terminated after period of about ten (10) years of continuous employment as assistant teacher.24. in 'akbar peerbhoy college and ors. v. mrs. pramila n. kutty and ors.' 1997 (3) mh.l.j. 195, a single bench of this court held that where appointment of a temporary employee was made for a fixed period, the services of such temporary employee came to an end on the expiry of that fixed period, and therefore, giving a notice under rule 28(1) of the meps rules was not required. it has been held that in such a case, specific termination order also is not required to be passed because the period of appointment is fixed and the termination is due to efflux of time. there cannot be duality about such a legal proposition. the appointment of the respondent no. 1 - aqueena bano was not, however, for a fixed tenure as such. the learned senior counsel for the petitioners further seeks to rely on 'mathuradas mohta college of science, nagpur v. r.t. borkar and ors.' 1997 (supp.) bom.c.r. 298 : 1997 (2) mh.l.j. 168. a division bench of this court held that when an employee is appointed on nonpermanent temporary vacancy, then the order of termination could not be treated as an order under section 5 of the meps act. it was observed that even assuming that there was a clear vacancy, the appointment order issued to the teacher was in purely temporary vacancy and, therefore, not proper order within the meaning of section 5 of the meps act. the fact situation of the present case is quite different. there is no sufficient material to hold that the appointment of the respondent no. 1 - aqueena bano was of temporary nature, or for fixed period or by way of stopgap arrangement at least after termination of the services of the respondent no. 3 - arshiya naaz and, in any case, after the dismissal of her appeal by the school tribunal.25. there is no dispute about eligibility of respondent no. 1 - aqueela bano for appointment as assistant trained teacher. a reference was also made to 'hindustan education society and anr. v. sk. kaleem sk. gulam nabi and ors.' : (1997)illj1071sc : (1997) 5 scc 152. in the fact situation of the given case, the apex court held that where the appointment order of the employee clearly mentioned that the appointment was purely temporary for period of 11 months, and after expiry of the above period, the service shall stand terminated without any notice, such appointment could not be considered as permanent. the appointment letter dated 29.11.1999 (exhk) is not worded in such fashion and, therefore, it is difficult to find parallel between the present case and 'hindustan education society and another' (supra). with due respect, therefore, i am of the opinion that the ratio in 'hindustan education society and another' (supra) is not applicable to the fact situation of the present case.26. copy of the letter dated 03.12.1999 (exhr1/a) purports to show that the head mistress of the petitioner no. 2 school urged the respondent no. 2 - education officer that appointment of the respondent no. 1 - aqueela bano for probation period may be approved as she was appointed on probation. it is significant to note that the education officer accorded the approval for probation period and from time to time thereafter without any reservation of rights in favour of the respondent no. 3 - arshiya naaz. the learned presiding officer of the school tribunal seems to have duly considered the relevant facts and the law. in the exercise of supervisory jurisdiction, i do not find any perversity in the view taken by the learned presiding officer of the school tribunal.27. in 'president v. sunita bansidhar patole' : 2007(3)bomcr829 : 2007 (3) bom.c.r. 829, a single bench of this court held that termination of the school teacher after five (5) years of continuous service could not be legal and proper when provisions of sub-section (5) of section 5 of the meps act cannot be invoked. it has been held that once it is proved that the school teacher was posted against a permanent vacancy and completed more than two (2) years' service, he will be deemed confirmed under section 5(2) of the act. the legal position is also explicitly clear from the observations in 'hindi vidya bhavan, mumbai and ors. v. presiding officer, school tribunal, mumbai and ors.' : (2008)iillj138bom : 2007 (6) mh.l.j. 563. this court held that mere non approval of the post would not be an embargo either on the management to make the assistant teacher permanent or on such a person, so appointed on the post, to claim permanency. 28. in 'ramchandar ramadhar yadav v. hyderabad (sind) national collegiate board and anr.' : 2006(5)bomcr820 : 2006 (2) mh.l.j. 530, it has been laid down that mere use of the word 'temporary' in appointment order by itself will not make the appointment temporary. there are cases and cases. the peculiar facts of the present case go to show that the respondent no. 1 - aqueela bano was appointed in vacant and permanent post on probation basis immediately after the termination of the respondent no. 3 - arshiya naaz. it appears that the management was determined to terminate the respondent no. 3 - and accommodate the respondent no. 1 - aqueela bano in the initial years when the former was suspended. the respondent no. 1 - aqueela bano was preferable to the management until she expressly indicated her antipathy towards alleged malpractices. the probation period was completed by the time the management desired to show her exit and hence, later on, the compromise with the respondent no. 3 - arshiya naaz was a stage managed farce to achieve such vindictive move of her elimination. 29. once the termination of the respondent no. 1 - aqueela bano was found to be illegal, she was entitled to claim back wages. this is not a case likewise one under the industrial disputes act where the manual workers or skilled workers may get employment during period of termination and reinstatement due to availability. there is no whisper in the reply affidavit of the petitioners before the school tribunal that the respondent no. 1 - aqueela bano was gainfully employed in any educational institution during the relevant period. hence, no fault can be found in the grant of the back wages to her.30. considering the relevant circumstances and having regard to the foregoing reasons, i do not find any serious fault with the impugned judgement and order. needless to say, this is not a case wherein exercise of the supervisory jurisdiction under articles 226 and 227 of the constitution is called for. 31. in the result, the petition is dismissed. no costs.