TEMPORARY APPOINTMENTS IN SCHOOLS =“Would it be open to the School Tribunal to hold that an employee would be deemed to be on probation within the meaning of Section 5(2) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 on the ground that the appointment was made in a clear and permanent vacancy, notwithstanding the fact that the letter of appointment specifically stipulated that the appointment has been made in a temporary capacity?” = We hold that it is not open to the School Tribunal to assume as of fact that the appointment made against a clear and permanent vacancy is deemed to be on probation, within the meaning of Section 5(2) of the Act. The School Tribunal cannot disregard the terms and conditions of the letter of appointment, if it expressly provides that the appointment is on temporary basis, for a limited term.

reported/published in http://bombayhighcourt.nic.in/judgements/2013/&fname=OSWP274005.
Bombay High Court
wp.315.2006+Full Bench.judgemnt.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
O.O.C.J. / CIVIL APPELLATE SIDE
WRIT PETITION (OS) NO. 315 OF 2006
WITH
NOTICE OF MOTION NO. 175 OF 2012
RAMKRISHNA CHAUHAN,
Residing at Bihari Chawl,
Behind Mukesh Medical Stores,
Ganesh Nagar, Kandivli (West)
Mumbai – 400067 :­ PETITIONER
VERSUS
1.  SETH D. M. HIGH SCHOOL,
through the Principal,
10th Road, Daulatnagar,
Borivli (E), Mumbai 400066
2.  DEPUTY DIRECTOR OF EDUCATION,
Jawahar Bhavan, Near Charni Road,
Mumbai – 400004
3.  THE BHARAT JATIYA SANGH,
through its Chairman,
10th Road, Daulatnagar,
Borivli (E), Mumbai 400066
4.  STATE OF MAHARASHTRA,
through the Department of
Education and Employment,
Mantralaya Annex,
Mumbai 400032 :­ RESPONDENTS
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WITH
CIVIL WRIT PETITION NO. 7482 OF 2006
WITH
CIVIL APPLICATION NO. 467 OF 2009
AND
CIVIL APPLICATION NO. 63 OF 2012
1.  THE CHAIRMAN,
Shri. Chhatrapati Shivaji
Shikshan Prasarak Sanstha
Sadhana Society, Hadapsar,
Pune – 411028
2.  SHRI R. P. JAGTAP,
Chairman, Shri. Chhatrapati
Shivaji Shikshan Prasarak
Sanstha Sadhana Society,
Hadapsar, Pune – 411028 :­ PETITIONERS
VERSUS
1.  STATE OF MAHARASHTRA
2.  EDUCATION OFFICER (PRIMARY)
Zilla Parishad, Pune.
3.  ADMINISTRATIVE OFFICER,
Municipal School Board, Pune
4.  SMT. SHARDA VITHAL MEMANE,
Age 25 years, Occupation – Nil,
R/at Pankat Plaza, C/o. D. M. Yadav,
Pune Saswad Road,
Near Satyapuram Bus Stop,
Satavwadi, Hadapsar, Pune – 28
5.  MRS. KAMBLE
Adult, Occupation – Service,
R/at A/At:­ C/o. Mahatma Phule
Prathmik Vidya Mandir,
Hadapsar, Pune – 28
(deleted as per order dated 12.10.2007) :­ RESPONDENTS
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WITH
CIVIL WRIT PETITION NO. 4683 OF 2005
ARCHANA VASANT PATIL
C/o. Dattaram A. Devulkar,
Room No. 26, Shanti Nivas,
Near Ashok Van, Sai Baba Mandir,
Dahisar (E), Mumbai – 400068 :­ PETITIONER
VERSUS
1.  WARE EDUCATIONAL TRUST,
through its Chairman/President/
Secretary, having their office at
C/o. Smt. Ashabai Tulsiram Ware
High School, Malad (E),
Mumbai – 400067
2.  SMT. ASHABAI TULSIRAM WARE
HIGH SCHOOL, through its H. M.
Sunil Sadan, Jai Bhim Nagar,
Gokuldham, General A. K.
Vaidya Marg, Malad (E),
Mumbai – 400067
3.  EDUCATION INSPECTOR (SECONDARY)
Greater Mumbai, West Zone,
Ismail Yusuf College Compound,
Jogeshwari, Mumbai – 400060
4.  SMT. ALKA PATIL
C/o. Smt. Ashabai Tulsiram Ware
High School, Malad (E),
Mumbai – 400060
5.  STATE OF MAHARASHTRA
through Secretary,
Department of Education,
Mantralaya, Mumbai – 32 :­ RESPONDENTS
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WITH
CIVIL WRIT PETITION NO. 4686 OF 2005
SANJAY NARAYAN SONAR
Samrat Colony, Nagindas Pada,
Virar Road, Nala Sopara (E),
Dist. Thane :­ PETITIONER
VERSUS
1.  WARE EDUCATIONAL TRUST,
through its Chairman/President/
Secretary, having their office at
C/o. Smt. Ashabai Tulsiram Ware
High School, Malad (E),
Mumbai – 400067
2.  SMT. ASHABAI TULSIRAM WARE
HIGH SCHOOL, through its H. M.
Sunil Sadan, Jai Bhim Nagar,
Gokuldham, General A. K.
Vaidya Marg, Malad (E),
Mumbai – 400067
3.  EDUCATION INSPECTOR (SECONDARY)
Greater Mumbai, West Zone,
Ismail Yusuf College Compound,
Jogeshwari, Mumbai – 400060
4.  PATIL SATISH B.
C/o. Suresh Eashwar Trimanke
New D'souza Chawl, Room No. 2,
Safed Pool, Pipe Line,
Kurla, Mumbai
5.  STATE OF MAHARASHTRA
through Secretary,
Department of Education,
Mantralaya, Mumbai – 32 :­ RESPONDENTS
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WITH
CIVIL WRIT PETITION NO. 4687 of 2005
PRAKASH BHANUDAS PATIL,
Age 38 years, C/o. Dattaram A.
Devulkar, Room No. 26,
Shanti Nivas, Near Ashok Van,
Sai Baba Mandir, Dahisar (E),
Mumbai – 400068 :­ PETITIONER
VERSUS
1.  WARE EDUCATIONAL TRUST,
through its Chairman/President/
Secretary, having their office at
C/o. Smt. Ashabai Tulsiram Ware
High School, Malad (E),
Mumbai – 400067
2.  SMT. ASHABAI TULSIRAM WARE
HIGH SCHOOL, through its H. M.
Sunil Sadan, Jai Bhim Nagar,
Gokuldham, General A. K.
Vaidya Marg, Malad (E),
Mumbai – 400067
3.  EDUCATION INSPECTOR (SECONDARY)
Greater Mumbai, West Zone,
Ismail Yusuf College Compound,
Jogeshwari, Mumbai – 400060
4.  PATIL MANOJKUMAR S.
C/o. Ashabai Tulshiram Ware
High School, Malad (E),
Mumbai ­ 400067
5.  STATE OF MAHARASHTRA
through Secretary,
Department of Education,
Mantralaya, Mumbai – 32 :­ RESPONDENTS
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WITH
CIVIL WRIT PETITION NO. 8472 OF 2006
1.  BHARTIYA GYANVARDHINI
SABHA,
Smt. Godavari Hindi Vidyalaya
Compound, Pune – Mumbai Road,
Chinchwad, Pune 411019
by their Chairman/
General Secretary
2.  BHARTIYA GYANVARDHINI SABHAS
SHRI KANTILAL KHINWASARA D.Ed.
COLLEGE (HINDI MEDIUM),
Laxman Nagar, Thergaon,
Pune – 411033
by their Principal :­ PETITIONERS
VERSUS
1.  STATE OF MAHARASHTRA
2.  DEPUTY DIRECTOR OF EDUCATION,
Pune Region, Pune 17,
Dr. Ambedkar Road, Pune – 411001
3.  MR. SUHAS NIVRUTTI TADWALKAR,
Age about 33 years, Occupation Nil
R/at 17/2, Ekta Colony,
Ganeshnagar, Thergaon,
Pune – 4110033
4.  BHARTIYA GYANVARDHINI SABHA
Smt. Godavari Hindi Vidyalaya
Compound, Pune Mumbai Road,
Chinchwad, Pune – 19
by their General Secretary :­ RESPONDENTS
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WITH
CIVIL WRIT PETITION NO. 6972 OF 2003
1.  M/S. INDIAN EDUCATION
SOCIETY,
A Society registered under the
Bombay Public Trust Act, 1949,
and also a Society registered
under the Societies Registration
Act, 1860, having its registered
office at Raja Shivaji Vidyalay
Sankul, Hindu Colony,
Dadar (East), Mumbai 400040
2.  SMT. K. G. MHATRE
Head Mistress,
I. E. S. Girls High School No. 2,
Now known as “I. E. S. Digambar
Patkar Vidyalaya”,
Hindu Colony, Dadar (East),
Mumbai – 400014 :­ PETITIONERS
VERSUS
1.  MR. GULAB DHANJI MORE
Residing at C/o. Shankar Hanumant
Pawar, Sumit Apartment, Plot No. 3,
Bhidewadi, Kansai, Ambarnath (E),
Dist. Thane
2.  DEPUTY DIRECTOR OF EDUCATION
Govt. of Maharashtra,
Mumbai – 400003
3.  THE EDUCATION INSPECTOR
Govt. of Maharashtra
1 North, Chembur,
Mumbai – 400071
4.  STATE OF MAHARASHTRA
Mumbai :­ RESPONDENTS
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Mr. Mihir Desai, for the Petitioners in WP/315/2006.
Mr. A. G. Kothari, for Respondent Nos. 1 and 3 in WP/315/2006.
Ms. Sindha Shridharan, AGP, for Respondent Nos. 2 and 4 in
WP/315/2006.
Mr. Raju Moray, i/b. Mr. Mandar Limaye, for Respondent Nos. 2
and 4 in WP/6972/2003.
Mr. Sunil Dighe, for the Petitioners in WP/4683/2005,
WP/4686/2005 and WP/4687/2005.
Mr. Jaydeep Deo, AGP, for Respondent State in Appellate side
matters.
Mr. Sanjeev J. Rairkar, for Respondent No. 3 in WP/7482/2006.
Mr. Santosh Jagtap, for Respondent No. 1 in WP/6972/2003.
Mr. A. M. Joshi, for the Petitioners in WP/7482/2006 and
WP/8472/2006.
Mr. Suresh Kumar Panicker, for Respondent Nos. 1 and 2 in
WP/4683/2005, WP/4686/2005 and WP/4687/2005.
CORAM:­ A.M.KHANWILKAR,
RANJIT MORE &
K.K.TATED, JJ.
Judgment Reserved on  :­ JANUARY 22, 2013
Judgment Pronounced on :­ MARCH 12, 2013
JUDGMENT :­ (Per A.M.KHANWILKAR, J.)
This Full Bench has  been  constituted by  the learned
Chief Justice in the light of reference made by the learned Single
Judge of this Court Brother Justice Dr. D. Y. Chandrachud, in Writ
Petition No. 315 of 2006, on 22nd  January, 2007, by a speaking
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order.
His Lordship in the reference order has adverted to the two
line of decisions of this Court and also to the decisions of the Apex
Court.  
His Lordship, has opined that in view of the law laid down
by the Apex Court, in Hindustan Education Society and Ors. Vs. S. K
Kaleem S. K. Gulam Nabi and ors.1
 and the subsequent decisions in
the case of Bhartiya Gramin P. Sanstha vs. Vijay Kumar and Co.2
 and
Kalpataru Vidya Samastha vs. S.B. Gupta3
, it may not be within the
jurisdiction  of  the  Tribunal  to  hold  that  an employee, who  has
been appointed on temporary basis, to be deemed to be appointed
on probation, on the ground that there was a clear and permanent
vacancy.  
Further, even the Division Bench of this Court, in the case
of Venkatraman Shankar vs. Jasbir Kaur Anand and Ors4
, has taken
the same view.
On the other hand, the exposition in two decisions
of Learned Single Judge of this Court, in the case of Shri. Sairam
Education  Trust  vs. Lalsaheb More  and Anr.5
  and in  the  case  of
Shikshan Prasarak Mandal vs. Presiding Officer, School Tribunal6
, is
contrary to the principle enunciated by the Apex Court as well as
1) 1997 (3) Supreme 292
2) (2002) 6 SCC 707 = 2003 (1) Mh. LJ 563
3 (2005) 7 SCC 524
4) Decided on 6th August, 1999 in Review Petition No. 16 of 1997, in Appeal No. 273 of 1997, in
Writ Petition No. 2799 of 1990
5) Decided on 25th August, 2005 in Writ Petition No. 902 of 1993
6) 2005 (6) BCR 311
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the Division Bench of  this Court.    In  the  reference order, other
decisions adverted to are in the case of National Education Society’s
High School vs. Lulomool Monachary7
,  Anil Vasant Chaudhari vs.
People’s Education Society8
,  Kazi Safiruddin Muzaffaruddin vs. The
State of Maharashtra and Ors.
9
, Kazi Safiruddin Muzaffaruddin vs.
The   State   of   Maharashtra10,   Siddharth   Charitable   Trust   vs.
Pandurang Maruti Dhumal11
, Mathuradas Mohta College of Science,
Nagpur vs. R. T. Borkar and Ors.12
, Kalpataru Vidya Samasthe (R)
and Ors. Vs. S. B. Gupta and Ors.
13
.
2) Accordingly,   the   learned   Single   Judge   directed   the
Registry to place the papers before the Learned Chief Justice, in
order to constitute Larger Bench to answer the following question:­
“Would it be open to the School Tribunal to hold that
an employee would be deemed  to be on probation
within   the   meaning   of   Section   5(2)   of   the
Maharashtra   Employees   of   Private   Schools
(Conditions of Service) Regulation Act, 1977 on the
ground that the appointment was made in a clear and
permanent vacancy, notwithstanding the fact that the
7) Decided on 27th March, 1987 in Writ Petition No. 1751 of 1986 = 1987(2) Bom.C.R. 521
8) Decided on 5th August, 1987 in Writ Petition No. 4714 of 1987
9) Decided on 28th November, 2005 in Writ Petition No. 2668 of 2005
10) Decided on 18th April, 2006 in Appeal No. 228 of 2006 arising out of Writ Petition No. 2268
of 2005
11) Decided on 7th July, 1999 in Writ Petition No. 3488 of 1999 (This decision has been upheld
by the Supreme Court in SLP (C) No.14795 of 1999 decided on 22nd November, 1999)
12) 1997 (2) Mh. L. J. 790 = 1997 (1) ALL. M.R. 149
13) 2005(7) SCC 524
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letter of appointment specifically stipulated that the
appointment   has   been   made   in   a   temporary
capacity?”
3) The brief facts, which have given rise to the filing of
the said Writ Petition, in which reference to Larger Bench has been
made, can be delineated as under:­
The Writ Petitioner possesses M.A., B.Ed. Degrees.  He
was fully qualified to teach in secondary school.  He was appointed
in respondent No. 1 school, as a full time Assistant Teacher from
21st  July, 1999.   The initial appointment order indicated  that he
was appointed only for the academic year, though the appointment
was   a7gainst   a   clear,   open   and   permanent   vacancy.     The
appointment order dated 17th  July, 1997 was made over  to  the
Petitioner on 30th March, 1998.  On the same day, he was issued a
letter of termination, terminating his service w.e.f. 30th April, 1998.
The Petitioner was then continued as an Assistant Teacher in the
following academic year. However, he was not given any  formal
appointment letter in  that  regard.   The Petitioner was issued  a
letter of termination, terminating his service w.e.f. 30th April, 1999.
Again, in the next academic year (1999­2000), the Petitioner was
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continued   as   an   Assistant   Teacher,   without   issuing   any   fresh
appointment  order.    At   the   end  of   the  academic   year,   on  27th
March, 2000,  the  Petitioner was issued  a letter,  terminating his
service w.e.f. 29th April, 2000.  The Petitioner, therefore, preferred
appeal.   During  the  pendency  of  that  appeal,  the Management
issued appointment order dated 10th  June, 1999, indicating  that
the Petitioner was appointed on probation.  During the probation
period, however, few memos were issued to the Petitioner, which,
according   to   the   Petitioner,   were   unrelated   to   his   work.
Nevertheless, the Petitioner was served with the termination order.
In  fact, in  the subject  taught by  the Petitioner,  the result of  the
students was 100%.  The Petitioner, aggrieved by the termination
of his services, filed appeal before the School Tribunal, asserting
that  he was  appointed  as  permanent  employee,  right  from  the
initial appointment and, his service could not be terminated in the
manner sought to be done.  The Tribunal, however, dismissed the
appeal preferred by the Petitioner and instead, held that since the
initial   appointment   order   of   the   Petitioner   was   purely   on
temporary   basis   for   a   limited   period,   the   Petitioner   cannot   be
treated   as   appointed   on   probation.     The   Tribunal   rejected   the
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argument of the Petitioner of having become deemed permanent.
The Petitioner then filed the present Writ Petition in this Court, in
which, reference has been made to the Larger Bench, as mentioned
above.
4) We have heard Counsel for the respective parties.  The
leading argument was made by Advocate Mihir Desai, followed by
Mr.Sunil   Dighe   espousing   the   cause   of   the   employees;   and   by
Mr.A.G. Kothari, Mr.Suresh Kumar Panicker and Mr. A. M. Joshi
espousing the cause of the Management.  Ms. Sindha Shridharan
and Mr. Jaydeep Deo, AGPs appeared for the State.
5) According   to   the   Counsel   for   the   employees,   the
purport   of   Section   5   of   the   Act   leaves   no   choice   to   the
Management   of   a   private   school   but   to   fill   in   the   permanent
vacancy,   by   appointing   a   person   duly   qualified   to   fill   in   such
vacancy,   in   the   manner   prescribed.     The   Management,   after
commencing   the   procedure   for   appointment   of   a   person   duly
qualified, to fill permanent vacancy, cannot deflect that process by
issuing  appointment  order indicating  that  the  appointment was
made   on   temporary   basis   or   for   limited   period.     Further,
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irrespective of the tenor or the contents of the appointment order,
it will have to be assumed that the appointment was on probation
for a period of two years, if made against permanent vacancy.  For
the same reason, even the Tribunal or the Court, as the case may
be, would be justified to hold that the person was deemed to be
appointed on probation, within  the meaning of Section 5 of  the
Maharashtra Employees of Private Schools (Conditions of service)
Regulation Act 1977 (hereinafter  referred  to  as  “the  said Act”),
if   it   is   found   that   his   appointment   was   against   a   clear   and
permanent vacancy,   notwithstanding the contents of the letter of
appointment.    In  support  of  their submission, Learned Counsels
have relied on the Authorities referred to in the reference order.
They have also pressed into service decisions of the Single Judge of
this   Court       in       the   case   of  Enteshan   Baig   vs.   Abdul   Aziz
Ansari14 and  Jagdamba   Education   Society,   Nagpur   vs.   Rajendra
Baburao   Golhar   and   Ors.
15   They   attempted   to   distinguish
the   decision   of   the   Division   Bench   of   our   High   Court   in   the
case  of  Priyadarshini  Education  Trust  and  Ors.  Vs.  Ratis  (Rafia)
Bano and Ors.
16 and also unreported decision of the Apex  Court  in
14) Decided on 5th December, 1985 in Writ Petition No. 2616 of 1983
15) 2009(2) Mh. L. J. 522
16) 2007(6) Mh. L. J. 667
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the case of Chatrapati Shivaji Shikshan Prasarak Mandal and Ors.
Vs. Dattatraya Rupa Pagar and Ors.
17
.
6) On the other hand, Counsel for the Management would
argue that the submission canvassed by the employees is founded
on misinterpretation of Section 5 of the said Act.  Section 5 merely
provides   for   a   legal   fiction   that   if   a   person   who   has   been
“appointed  on  probation”  to  fill  up  a  permanent vacancy,  upon
completion of probation period of  two years, shall be treated as
deemed  to have been confirmed.   Section 5, however, does not
contain a legal fiction to ignore the  terms and conditions of the
appointment order and  to assume  that  the appointment was on
probation basis, merely by virtue of the fact that the appointment
was against a permanent vacancy.  According to the Management,
in a given case, even though the Management may commence the
process   for   selecting   a   qualified   person   to   be   appointed   on
probation,   against   a   permanent   vacancy,   in   its   private   school,
however,   there   is   inherent   power   in   the   Management   to   issue
appointment order,  to  appoint  that person on  purely  temporary
17) Decided on 13th April, 2012 in Civil Appeal No. 3563 of 2012, arising out of SLP (C) No.
18327 of 2011.
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basis for a limited period, making it clear that his services will be
terminated on expiry of that period, without any notice.  Further,
the Management is free to issue successive appointment orders on
similar basis, until  a duly  qualified person, who is  found  to be
suitable by the Management, is available and selected to fill up the
permanent vacancy.   The Management may consider  appointing
only such person on probation.  For, there is no obligation on the
Management   to   appoint   a   person   duly   qualified,   directly   on
probation  for  two years against a permanent vacancy.    In other
words,   only   duly   qualified   suitable   candidate,   selected   by   the
Management, as such, at the end of the selection process, to fill a
permanent vacancy, the Management would appoint the person on
probation.  Section 5 of the Act does not whittle down this power
and authority of the Management.  On the contrary, the language
of Section 5 supports this stand of the Management.  The Counsel
for the Management, in addition to the authorities referred to in
the reference order, have pressed into service decision of the Apex
Court in the case of Gridco Limited and Anr. Vs. Sadananda Doloi
and Ors.
18, which has restated the legal position that the power to
make contractual appointment is implicit in the power to make a
18) 2012 AIR (SC) 729
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regular permanent appointment unless the statute under which the
Authority exercises its powers and discharges its functions or the
Rules and Regulations governing recruitment specifically forbid the
making of such an appointment.
7) Before we  analyse  the  rival  submissions, we deem it
appropriate  to reproduce relevant provisions of Section 5 of  the
Act and the Rules.  Section 5 reads thus:­
“5. Certain obligations of Management of private schools.
(1)   The Management shall, as soon as possible,  fill in, in  the
manner prescribed every permanent vacancy in a private school
by   the   appointment   of   a   person   duly   qualified   to   fill   such
vacancy:
[[ Provided that unless such vacancy is to be filled in by
promotion, the management shall, before proceeding to fill such
vacancy,   ascertain   from   the   Educational   Inspector,   Greater
Bombay, [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.]
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(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 sub­
section (3) and he is reappointed by the Management in the same
school or any other school belonging to it within a period of one
year from the date on which his services were terminated, then
the  period  of  probation undergone  by  him  previously  shall  be
taken into consideration in  calculating  the  reuquired 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.”
8) Rule 9 and 10 of the Maharashtra Employees of Private
Schools (Conditions of Service) Rules, 1981 (hereinafter referred
to as “the said Rules)”, reads thus :­
“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 authorized by the School Committee.
(3) Unless otherwise provided in these rules for every
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appointment  to be made in a  school,  for a  teaching or a non­
teaching   post,   the   candidates   eligible   for   appointment   and
desirous of applying for such post shall made 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   sub­rule   (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 that 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  age­limit may be  relaxed in
case   of   women,   ex­servicemen   and   persons   having   previous
experience with the previous permission of the Deputy Director.
+(the figures and words “25 years” and “30 years” are
substituted by figures and words “28 years” and “33 years”
by Not. No. PST 1083/194/SE­3, Cell, dated 20.12.1984.)
(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 52 per cent of  the  total
number of posts of  the  teaching and non­teaching staff  for  the
persons   belonging   to   the   Scheduled   Castes,   Scheduled   Tribes,
Denotified   Tribes   (Vimukta   Jatis),   Nomadic   Tribes,   Special
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Backward   category   and   other   Backward   Classes   as   follows,
namely:­
(a) Scheduled Castes 13 per cent;
(b) Scheduled Tribes 7 per cent;
(c) De­notified Tribes (A) 3 per cent;
(d) Nomadic Tribes (B) 2.5 per cent;
(e) Nomadic Tribes (C) 3 per cent;
(f) Nomadic Tribes (D) 2 per cent;
(g) Special Backward Category 2 per cent;
(h) Other Backward Classes 19 per cent;
Total ­  52 per cent.  
+sub­rule  (7)  substituted  by  Not.  No.  PRASHANYA..  1005/
(94/05)/SE­2 dated 08.07.2008.
(8) For the purpose of filling up the vacancies reserved under
sub­rule (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 +[and  to  the
associations or organizations of persons belonging to Backward
Classes, by whatever names such associations or organizations are
called, and which are recognized by Government for the purposes
of this sub­rule] 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   such   associations   or   organizations   as
aforesaid]   or   if   no   such   names   are   recommended   by   the
Employment Exchange or the District Social Welfare Officer +[or
such associations or organization as aforesaid] within a period of
one month the Management may proceed to fill up the reserved
post in accordance with the provisions of sub­rule (9).
+ The words  are  inserted by Not No. PST/1083/194/SE­3­
Cell, dated 20.12.1984.
(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 sub­rule (7) and if no person from any of
the categories is available, the post may be filled in temporarily or
an   year­to­year   basis   by   a   candidate   not   belonging   to   the
Backward Classes.
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(b) In the case of 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 33 per
cent. Of the total number of posts (or vacancies) of heads and
Assistant Heads for the numbers of Scheduled Castes, Scheduled
Castes converts to Buddhism, Scheduled Tribes Denotified Tribes
(Vimukta Jatis), Nomadic Tribes and Special Backward Category
as follows, namely:­
(i) Scheduled Castes and Scheduled
Castes converts to Buddhism
13 per cent
(ii) Scheduled Tribes including those
living outside the specified areas.
07 per cent
(iii) Denotified Tribes (A) 03 per cent
(vi) Nomadic Tribes (B) 2.5 per cent.
(v) Nomadic Tribes (C) 3.5 per cent.
(vi) Nomadic Tribes (D) 02 per cent.]
(vii) Special backward Category 33 per cent
(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 does not
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   seniority­cum­merit   after
obtaining previous approval of the Education Officer:
(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.
+Clause   (a)   substituted   by   Not.   No.   PRASHANYA.
1607/(516/07)/PE­3 dated 08.10.2008­
+[(11) …………..] Deleted.
+Sub­rule   (11)   is   deleted   by   Note.No.
PST/1083/194/SE­3­Cell, dated 20.12.1984.”
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“10. Categories of Employees.
(1) Employees shall be permanent or non­permanent.
Non­permanent employees may be either temporary or on
probation.
(2) A temporary employee is one who is appointed to a
temporary vacancy for a fixed period.”
9) Form   of   order   of   appointment,   as   prescribed   in
Schedule ‘D’ reads thus:­
“SCHEDULE ‘D’
[See rule 9 (5)]
Order of Appointment
No.     Date
From
To
Shri/Smt.
With reference to your application dated ……………….., I
have the pleasure to inform you that you are hereby appointed
as …………………... on Rs. ………… per month in the scale of
Rs. ……………  with effect  from ………………..  or  the  date
your report for duty.  You will be entitled to allowances such as
compensatory   local   allowance,   house   rent   allowance   and
dearness allowance as specifically sanctioned by Government
from time to time.
2 *     Your   appointment   is   purely   temporary   for   a
period   of   ………..*months/years   from   …………….   In   the
*leave/deputation vacancy.   After expiry of the above period,
your services shall stand terminated without any notice.
OR
*Your appointment is on probation for a period of
two years.
3 The terms of your employment and conditions of
service shall be as laid down in the Maharashtra Employees of
Private Schools (Conditions of Service) Regulation act, 1977
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and the Rules made thereunder.
4 You shall have to undergo a medical examination
by Dr. …………………………. + within three months from the
date of joining the post.  Your appointment shall be conditional
pending the receipt of physical fitness certificate from the
doctor whose name is mentioned above.
5 You are requested to acknowledge receipt of this
order of appointment and communicate the acceptance of the
appointment within …………… days from the date off receipt
of the same.
6 If no reply accepting the appointment is received
within the period mentioned in paragraph 5 the order shall be
treated as cancelled.
Yours faithfully.
*Head   Master   and   Secretary  of
the   School   Committee   (in   the
case   of   appointment   order   of
teaching   and   non­teaching   staff
of the school excluding the Head
Master/Assistant Head Master).
Seal
*Chief  Executive Officer  (in  the
case of order of appointment of
Head   Master/Assistant   Head
Master).
* Strike off which is not applicable.
+ To be named by the Management.
­­­­­­­­­­­­­­­­­­­­’’
10) We shall also refer  to the Bombay Primary Education
and the Maharashtra Employees of Private Schools (Conditions of
Service)   Regulation   (Amendment)   Act,   2011,   which   came   into
effect from 14th May, 2012.  Section 10 to 12 of the said Act reads
thus:
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“10.  Amendment of section 2 of Mah. III of 1978 –
In   section   2   of  the   Maharashtra   Employees   of   Private   Schools
(Conditions of service) Regulation Act, 1977 (hereinafter, in this
Chapter,   referred   to   as   “the   Employees   of   Private   Schools
(Conditions of Service) Regulation Act”), ­
(a)  in clause (7), for the words “shikshan sevak” the words
“Assistant Teacher (Probationary)” shall be substituted;
(b)   in  clause (10),  for  the words  “shikshan  sevaks”  the
words “Assistant Teachers (Probationary)” shall be substituted;
(c)   in clause (24A),  for  the words  “shikshan  sevak”  the
words “Assistant Teacher (Probationary)” shall be substituted.
11.  Amendment of section 5 of Mah. III 1987 –
In section 5 of  the Employees of Private Schools (Conditions of
Service) Regulation Act, ­
(a)  in sub­section (2) –
(i)   for   the   words   “shikshan   sevak”   the   words
“Assistant Teacher (Probationary)” shall be substituted;
(ii)   in the proviso, for the words “shikshan sevak”
the words “Assistant Teacher (Probationary)” shall be substituted;
(b)  in sub­section (2A), for the words “Shikshan sevak” the
words “Assistant Teacher (Probationary)” shall be substituted.
12.    Saving   –  The   terms   and   conditions   prescribed   by   the
Government  for  the  appointment  of  shikshan  sevaks,  by issuing
Government Resolutions or orders, from time to time, before the
date of commencement of the Bombay Primary Education and the
Maharashtra Employees of Private Schools (Conditions of Service)
Regulation (Amendment) Act, 2011, shall continue to be in force
unless they are modified or revoked by the Government.”
11) Reverting   to   the   issue   under   consideration,   there   is
force in the argument of the Management that the power to make
a contractual  appointment on  temporary basis is implicit in  the
power to make an appointment on probation after following the
prescribed   selection   procedure   to   fill   in   a   permanent   vacancy,
unless the statute under which the authority is exercised expressly
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or impliedly forbids the making of such appointment [see Gridco
Ltd. (supra) para 12 thereof].
12) The   question   is:   whether   the   provisions,   extracted
above, have the propensity to whittle down that authority of the
Management?  Indisputably, the governing provision regarding the
conditions of service of employees of  the private schools can be
traced  to Section 5 of  the Act of 1977.   Sub­section (1) thereof
postulates   that   the   Management   shall   fill   in   the   permanent
vacancy   as   soon   as   possible.     It   further   provides   that   the
appointment of a person duly qualified, to fill permanent vacancy,
should  be made in  the manner  prescribed.    It is  one  thing  to
suggest  that the permanent vacancy in a private school must be
filled   only   by   a   duly   qualified   person   and   in   the   manner
prescribed.  But, that does not necessarily mean that the inherent
powers of the Management to make appointment on contractual
basis,   is   expressly   or   impliedly   taken   away,   by   law.     There   is
nothing in this sub­section to indicate to the contrary.
13) Indeed, this provision obliges the Management to fill in
the permanent vacancy “as soon as possible”.  The term “as soon as
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possible” would mean that it has to be done within a reasonable
time.  That is a relative term.  Nevertheless, by virtue of mandate
of section 5(1), there is implicit obligation on the Management to
fulfill   that   requirement   at   the   earliest,   to   wit,   before
commencement of  the new academic year. That is so because, a
permanent vacancy is one, which is in respect of a sanctioned post
and in  the case of an aided school, entitles  the Management  to
receive commensurate grants in aid from the Government. Further,
the   sanctioned   post   for   a   school   is   prescribed   by   the   State
Authority keeping in mind  the benchmark  to be maintained  for
imparting high quality education and maintaining discipline in the
school – commensurate with  the strength of  the students in  the
school.  Thus, keeping the permanent vacancy unfilled for a long
time, may entail in dilution of imparting of quality education.  A
fortiori, though the Management has implicit power to appoint a
duly qualified person on contractual employment even against a
permanent vacancy but, that must be only an interim arrangement
till a suitable candidate is found in the selection process.  It cannot
be   continued   on   year   to   year   basis   in   succession.     If   the
Management holds the selection process in the prescribed manner
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but wants  to appoint  the selected candidate on  temporary basis
must  contemporaneously  record  tangible  reasons  as  to why  the
selected candidate is not  suitable  to be  appointed on probation
against  the  permanent vacancy.    In  that event,  the Appropriate
Authority   can   consider   the   challenge   to   the   appointment   on
temporary   basis   instead   of   probation,   against   a   permanent
vacancy.  Further, the Management, receiving grants in aid, from
the Government, should not and cannot be permitted to appoint a
duly   qualified   person   on   temporary   basis   against   a   permanent
vacancy, without holding of selection process as soon as possible in
the prescribed manner.  Besides, inspite of availability of a suitable
candidate identified in  the  selection  process  held  to  fill in  the
permanent   vacancy,   the   Management   cannot   appoint   him   on
temporary basis against a permanent vacancy.     Any other view
would be antithesis to the mandate of Section 5(1) of the Act and
against the principle underlying the exposition of the Apex Court
in the case of Ratan Lal and Ors. Vs. State of Haryana and Ors., as it
would be hit by Article 14 and 16 of the Constitution of India.
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14) Reverting to the proviso to Sub­section (1) of Section
5, it is in respect of vacancy  to be  filled in by promotion.   This
provision   has   no   application   to   the   question   posed   for   our
consideration, which is related to initial appointment.
15) We may now turn to Sub­section (2) of Section 5 of the
Act, which is the core provision for answering the controversy.  No
doubt, the opening sentence of this provision gives an impression
that every person, appointed to fill a permanent vacancy, shall be
on probation for a period of two years.   However, this provision
cannot  be  construed  as  taking  away  the implicit  power  of  the
Management to make a contractual employment while making a
regular permanent appointment. This provision is only an enabling
provision   that   if   the   Management   intends   to   fill   a   permanent
vacancy, has to appoint a person duly qualified on probation for a
period   of   two   years.     This   part   of   Sub­section   (2),   cannot   be
construed as a deeming provision or a legal fiction to treat every
appointment   made   against   a   permanent   vacancy   must   be   on
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probation,   notwithstanding   the   express   terms   contained   in   the
appointment   order   that   the   appointment   is   contractual   and
temporary basis for a limited period.   The deeming provision or
legal fiction is found in the second part of Sub­section (2).  That
applies to a person, who, in fact, has been appointed on probation
and  completes   probation   period   of   two   years.     That   person  is
deemed  to  have been confirmed.   The  second part  of  this  sub­
section cannot come to  the aid of an employee who was in fact
appointed on purely temporary basis for a limited period.
16) The   question   is,   whether   the   Management   has
unbridled power and authority to appoint a duly qualified person
on temporary basis against a permanent vacancy?   As aforesaid,
the   Management   is,   primarily,   under   an   obligation,   in   law,   by
virtue of Section 5(1), to fill in the permanent vacancy as soon as
possible.  To wit, if a permanent vacancy is caused by any reason,
before   the   commencement   of   the   new   academic   year,   the
Management must take immediate steps to fill in that vacancy, by
appointing a duly qualified person, after following the prescribed
procedure, on probation, for a period of two years.  That means,
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the selection process must be held to, as far as possible, culminate
with   selection   of   a   duly   qualified   person,   before   the
commencement  of  the  new  academic year.   However,  for  some
fortuitous  or  tangible  reason,   such   selection   process   cannot   be
commenced or for that matter completed, there would be nothing
wrong if the Management were to appoint a duly qualified person
on contractual or temporary basis, for a limited duration, so that,
in   the   mean   time,   the   prescribed   procedure   to   select   a   duly
qualified person, to fill in the permanent vacancy is completed and
the  selected  person can  be  appointed on probation,  against  the
permanent   vacancy.     There   may   be   situation   where   the
Management   makes   efforts   in   right   earnest   to   complete   the
selection process but, at  the end of  the process, it is confronted
with a situation where the person who participated in the selection
process, though duly qualified, in its perception is not suitable for
appointment.  In that event, it can certainly make an appointment
on contractual or temporary basis, for a limited duration, so that
new selection process can be commenced and concluded within a
reasonable time.
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17) Ordinarily, if the selection process is commenced and at
the end of the selection process a person duly qualified is available
and is found to be suitable, the Management is under an obligation
to appoint him on probation, to fill in the permanent vacancy.  This
mandate flows from conjoint reading of Sub­section (1) and (2) of
Section 5.  The only exception is, where a person identified in the
selection process is duly qualified but is not found suitable by the
Management,   the   Management   is   free   to   exercise   its   inherent
power of making a contractual or temporary appointment.  Indeed,
whether a person, who had participated in the selection process, is
suitable   for   being   appointed   or   otherwise,   is   the   subjective
satisfaction of the Management.  Merely because a person is duly
qualified, that per se is not enough.  The person must not only be
duly  qualified  to  fill  the  permanent  vacancy  but, must  also  be
found   to   be   suitable   by   the   Management.     However,   the
Management cannot be permitted to take cover under the pretext
of successively rejecting the candidates in selection process on the
ground   of   suitability;   and   keep   on   appointing   same   person   or
different  persons  on  contractual  or  temporary  basis  for limited
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duration,   against   a   permanent   vacancy.     In   cases   where   the
Management takes a conscious decision to appoint a duly qualified
person   on   temporary   basis,   for   a   limited   period   against   a
permanent   vacancy,   it   must   contemporaneously   record   its
subjective satisfaction in that behalf.  For, if the appointment order
on contractual basis were to be made subject matter of challenge
before any Authority or Court of law, in such inquiry, it may be
open   to   examine   the   controversy   on   the   touchstone   of
permissibility  of judicial  review  of  such  decision.    If  finding  of
colourable exercise of power by the Management is arrived at in
that   inquiry,   appropriate   direction   can   be   issued   against   the
Management.  That will have to be examined on case to case basis.
18) A   priori,   we   have   no   hesitation   in   taking   the   view
that neither Section 5(1) nor 5(2) of  the Act can be construed
as   forbidding   the   Management   from   making   an   appointment
on   contractual   or   temporary   basis   for   a   limited   duration
against   a   permanent   vacancy   until   a   suitable   candidate
is   selected.     Further,   there   is   nothing   in   these   provisions   to
indicate   that   every   appointment   made   by   the   Management,
in relation to a permanent vacancy, must be deemed to  have  been
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made on probation for a period of two years.   There is no such
legal   fiction   unlike   in   the   case   of   a   person   appointed   “on
probation”  for  a  period  of  two  years, is  deemed  to  have  been
confirmed, upon completion of that period.   In other words, the
parties would be bound by the terms and conditions stated in the
letter   of   appointment,   as   there   can   be   no   presumption   of
appointment having been made  “on probation”  unless expressly
stated in the appointment letter itself.
19) Our   attention   was   invited   to   Sub­section   (2A)   of
section   5   as   also   the   amendment   of   2011.     This   provision
essentially pertains to the conditions of service of Shikshan sevaks.
The   question   under   consideration   has   no   application   to   the
appointment   of  Shikshan   sevaks.     By   virtue   of   proviso   to   sub­
section   (2),   a   duly   qualified   person   has   to   be   appointed   on
probation  for  a period of  three years  as  Shikshan  sevak  and by
virtue of Sub­section (2A), on completion of probation period of
three years,  that person is deemed  to have been appointed and
confirmed as Assistant Teacher.  The term Shikshan sevak, by virtue
of   amended   provisions   would   mean   “Assistant   Teacher
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(Probationary)”.     As  aforesaid,  we  are  not  concerned  with  the
conditions   of   service   of  Shikshan   sevak  or   Assistant   Teacher
(Probationary),   much   less   with   the   amended   provisions   or  the
efficacy thereof.
20) Relying on Sub­section (5) of Section 5, it was argued
that the Act makes distinction between “permanent vacancy” and a
“temporary   vacancy”.     While   appointing   a   person   against   a
temporary vacancy, the order of appointment has to be drawn in
the prescribed form and it must state the period of appointment of
such person.  It was submitted that this sub­section is indicative of
the scheme of Section 5.  It makes a marked departure when the
appointment is   to  be  made  against   a   permanent   vacancy.     No
doubt,  this   provision  deals  with  a  specific   category  of   vacancy
namely,   temporary   vacancy   and   the   manner   of   filling   in   that
vacancy.  However, this provision cannot be construed to mean as
forbidding the Management from making contractual or temporary
appointment in respect of a permanent vacancy, if the situation so
warrants, which is  the implicit power of  the Management while
making appointment against a permanent vacancy.  The only word
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of caution we may add, is, ordinarily, when appointment is to be
made against a permanent vacancy, the Management is obliged to
follow the prescribed procedure in that behalf but, only when the
selection process cannot be taken to its logical end or because of
unsuitability of the candidates, the Management may be justified
in appointing a duly qualified person for a temporary period.  In
that case, however, the Management is under a legal obligation to
initiate the process for appointing a duly qualified suitable person
against the permanent vacancy on probation, at the earliest.
21) We may now refer  to Rule 9 of the said Rules.   This
provision deals with the procedure for appointment and issuance
of   appointment   order   in   the   prescribed   form   of   staff,   namely,
teaching as well as non  teaching  staff.   The argument proceeds
that   Sub­rule   (8)   merely   provides   for   procedure   for   making
temporary   or   year   to   year   basis   appointment   only   against   a
reserved vacancy.   As regards  the permanent vacancies or posts,
such arrangement is conspicuously absent.  This argument clearly
overlooks that the Rules are framed only to specify the procedural
matters.  The substantive portion is found in Section 5 of the Act.
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We have elaborately dealt with  the purport of Section 5 in  the
earlier part of this Judgment.  The fact that there is no provision in
Rule 9 regarding the manner of making appointment on temporary
or year to year basis against a permanent vacancy, does not, in any
manner, affect the legal position that the Management has implicit
power of appointing a person on contractual or temporary basis,
while making a regular permanent appointment, in absence of an
express provision forbidding it to do so.
22) Emphasis was then placed on Rule 10 to demonstrate
that only two categories of employees are recognized by the Rules,
namely,   permanent   or   non   permanent.     Further,   the   non
permanent employees may be either temporary or on probation.
Sub­rule (2) of Rule 10 envisages  that a  temporary employee is
one who is appointed on a temporary vacancy, for a fixed period.
As  aforesaid,  the Rules  cannot  be  the  basis  to  undo  or whittle
down   the   implicit   power   of   the   Management,   in   making
contractual   or   temporary   appointment,   as   there   is   no   express
provision in  the Act of  1971,  forbidding  the Management  from
exercising that power.
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23) The Form of order of appointment is found in Schedule
‘D’ to the Rules.   Clause 2 of the Form indicates the category of
appointment,   purely   temporary   or   on   probation.     As   regards
appointment   on   temporary   basis,   it   refers   to   the   appointment
against leave/deputation vacancy.  Moreover, the prescribed Form
provides that the inapplicable conditions be struck off.  Understood
thus, we have no manner of doubt that the scheme of the Act and
the Rules in  no way  forbid  the Management  to  appoint  a  duly
qualified person on  temporary basis  for a limited duration, until
the selection of a duly qualified and “suitable” person  for being
appointed on probation, to fill in the permanent vacancy.
24) The other legal principle, which is indisputable, is that,
if  the  parties  accept  the  terms  and  conditions  stipulated in  the
appointment  order, later  on, it is  not  open  to  the employee  to
challenge that appointment, being contrary to the Rules or on the
ground that the terms and conditions stipulated therein were not
legally   valid.     This   legal   position   is   restated   in   para   8   of
Kalpataru Vidya Samasthe (supra).  In the facts of the present case,
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it is noticed that the initial appointment of the Writ Petitioner, in
the leading Writ  Petition, was on  temporary  basis  for  a limited
period.     After   his   service   was   terminated,   once   again   he   was
appointed in the following academic year, on the same post but, on
temporary basis.   When the said Petitioner was appointed in the
succeeding academic years, he had become fully aware about the
terms and conditions of his initial appointment, yet he continued
to   be   in   the   employment,  without  any   demurer.     Suffice  it   to
observe   that   if   the   appointment   order   mentions   that   the
appointment is on temporary basis or for a limited period, it is not
open   to   the   employee   to   assume   that   he   was   appointed   on
probation against permanent vacancy, nor it is open to the School
Tribunal or the Court of law to assume that fact.  That is a question
of fact to be pleaded and proved in appropriate proceedings, on
case   to   case   basis.    We   hold   that   there   is   no   legal   fiction   or
deeming   provision   that   every   appointment   made   against   the
permanent  vacancy, is  deemed  to  be  on  probation,  though  the
Management makes that appointment on temporary basis, having
found that the candidates appeared in the selection process were
unsuitable.
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25) We  shall now  turn  to  the  relevant decisions.    In  the
case   of  National   Education   Society’s   High   School  (supra),   the
Learned   Single   Judge   of   this   Court,   after   adverting   to   the
appointment order, which clearly mentioned  that it was  for  the
relevant academic year and for a limited term, held that since the
Petitioner therein was appointed in the vacancy caused due to the
outgoing   employee,   who   was   a   permanent   employee,   the
appointment  should   be  deemed  to  be   on  probation.    It is  not
possible to countenance this exposition.   The next decision is an
unreported decision of the Division Bench of this Court in the case
of  Anil Vasant Chaudhari  (supra), which  has  followed  the view
taken   by   the   Learned   Single   Judge   in   the   case   of  National
Education Society (supra) and Enteshan Baig (supra).
26) However, we are bound by the exposition of the Apex
Court in  the case of  Hindustan Education Society  (supra), which
had occasion to consider Section 5 of the Act.   In that case, the
appointment   of   Respondent   No.   1   therein   was   against   a   clear
vacancy  but  on  purely  temporary  basis,  for  a limited  period  of
eleven months.  The Court, after considering Section 5(1) and (2)
of the Act, opined that the said respondent cannot be treated to be
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appointed as a permanent employee or that he was appointed on
probation.  Even in the case of Bhartiya Gramin P. Sanstha (supra),
the Apex Court was dealing with person appointed for a period of
two years.  No doubt, in that case, the appointment was on purely
temporary basis, because of non availability of reserved candidate
to  fill in permanent vacancy.   But,  the principle restated in  this
decision, is that, when the appointment letter expressly states the
terms   and   conditions,   it   is   not   open   to   assume   that   the
appointment was on probation, merely because of availability of
permanent vacancy.  Even in the unreported decision of the  Apex
Court in the case of Chatrapati Shivaji Shikshan Prasarak Mandal
(supra),   the   same   view   has   been   reiterated.     In   the   case   of
Priyadarshini Education Trust (supra),  the Division Bench of  this
Court  has  culled  out  the  gist  of  the  decisions  on  the  point, in
paragraph 9 thereof. Notably, the issue was directly considered by
the learned Single Judge, after the decision in Hindustan Education
Society (supra), in the case of Pandurang Maruti Dhumal (supra).
As   a   matter   of   fact,   the   Learned   Single   Judge   expressed   his
inability to take a different view because of the said decision of the
Apex Court.   His Lordship granted leave  to appeal under Article
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133 read with 134(A) of the Constitution of India, as prayed by
the Petitioner, as the issue was recurring one and involved in large
number of matters.  However, due to dismissal of the SLP (Civil)
No. 14795 of 1999 against the decision in Writ Petition No. 3488
of 1999 in the case of Pandurang Dhumal, vide order dated 7th July,
1999, it is clear that the Apex Court did not find it necessary to
examine  the question any  further, having been answered in  the
decision in Hindustan Education Society (supra).
27) The Counsel for the Writ Petitioner, however, relied on
the decisions of the Learned Single Judge of this Court in the case
of  Enteshan  Baig  (supra),  Shri.  Sairam  Education  Trust  (supra),
Shikshan   Prasarak   Mandal  (supra)   and  Jagdamba   Education
Society (supra).  For the view that we have taken, we do not agree
with the exposition of the learned Single Judge of this Court in the
abovesaid decisions.  No doubt, attempt has been made in the case
of Shikshan Prasarak Mandal (supra) to distinguish the Judgment
of   the   Apex   Court   in   the   case   of  Hindustan   Education   Society
(supra).  Further, the reason to distinguish the decision of the Apex
Court decision in the case of Hindustan Education Society (supra),
will be of no avail. That reason cannot be the basis to discard the
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exposition,   in   particular,   in   Paragraph   5   and   6   of  Hindustan
Education   Society  (supra).   Because,   it   clearly   proceeds   on   the
admitted position that the appointment order of Respondent No. 1
indicated  that  the  appointment was  on  purely  temporary  basis,
against a clear vacancy.  Counsel for the Writ Petitioner, however,
was at pains  to persuade us  to  take a view  that  the expression
“clear   vacancy”   may   have   different   connotation   than   the
expression “permanent vacancy”.   In case of permanent vacancy,
the manner of appointment can be only on probation.  However,
we are not impressed with this logic.
28) Accordingly, we are inclined to answer the issue in the
negative.   We hold that it is not open to the School Tribunal  to
assume as of fact that the appointment made against a clear and
permanent   vacancy   is   deemed   to   be   on   probation,   within   the meaning of Section 5(2) of the Act. 
The School Tribunal cannot disregard the terms and conditions of the letter of appointment, if it expressly provides that the appointment is on temporary basis, for a limited term.
29) Having   answered   the   issue   under   consideration,   we
deem it appropriate to direct the office to place the matters, before
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the  Appropriate  Bench,  for  taking  up  the  same  for  hearing  on
merits.
(K.K.TATED,J.)(RANJIT MORE, J.)(A.M.KHANWILKAR,J.)
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