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Thursday, July 21, 2016

Service Matter = “Your appointment is temporary for one session from 1.8.96 to 30.4.97 period of one session. Your services are likely to be discontinued by giving one month’s notice on either side.” Order dated 21.07.1997 “Your appointment is on temporary basis upto 30.04.1998. Your services are likely to be discontinued by giving one month’s notice on either side.” - The respondent No. 1 neither challenged the constitutional validity of the Act and nor challenged the termination on the ground of mala fides attributable against any particular authority. The respondent No. 1 was also not able to point out any arbitrariness in the impugned action to enable the High Court to invoke Article 14 of the Constitution for quashing the termination order. In these circumstances, we are of the view that there was no justification for the High Court to hold that the respondent No. 1 was appointed on permanent basis and that termination order was bad in law. The appeal thus succeeds and is allowed. Impugned order is set aside and that of the Tribunal restored. As a result, the writ petition filed by respondent No.1 (employee) stands dismissed and the termination order dated 31.03.1998 is upheld as legal.

                                                                  REPORTABLE
                            IN THE SUPREME COURT OF INDIA

                             CIVIL APPELLATE JURISDICTION

                             CIVIL APPEAL No. 6498 OF 2016
                      (ARISING OUT OF SLP (C) No. 30834/2014)


Pragati Mahila Samaj & Anr.       …….Appellant(s)


                             VERSUS


Arun & Ors.                       ……Respondent(s)



                               J U D G M E N T

Abhay Manohar Sapre, J.
1.    Leave granted.
2.    This appeal is filed  against  the  final  judgment  and  order  dated
01.08.2014 passed by the High Court of Judicature at Bombay Bench at  Nagpur
in Writ Petition No. 2374 of 1999 whereby the High Court  allowed  the  writ
petition filed by respondent No.1 herein  and  set  aside  the  order  dated
05.08.1998 passed by the College  Tribunal,  Nagpur  University,  Nagpur  in
Appeal No. N-10 of 1998 and quashed the termination order  dated  31.03.1998
issued by appellant No.1 herein by which the services of the respondent  No.
1 had been  terminated.  The  High  Court  further  directed  the  concerned
authorities to reinstate the respondent No.1 on the  post  of  Lecturer  but
without payment of any back wages to him.
3.    Facts of the case  lie  in  a  narrow  compass.  They,  however,  need
mention in brief  to  appreciate  the  short  controversy  involved  in  the
appeal. The facts are taken from the SLP.
4.    Pragati Mahila  Mahavidyalaya  (appellant  No.2  herein)  is  a  girls
college at Bhandara, Maharashtra. It is run by appellant No. 1, which  is  a
registered trust/society at Bhandara.  The  appellant  No.  2  published  an
advertisement  on  23.06.1996  inviting  application  for   the   posts   of
Lecturers.  The respondent No.1  was  selected  and  was  accordingly  given
appointment for the post of Lecturer  in  Geography  as  part-time  Lecturer
vide appointment order dated 20.07.1996. The appointment was  temporary.  It
was for a fixed period from 01.08.1996 to 30.04.1997.  It came to an end  by
efflux of time.    In the Academic Session 1997-1998, another  advertisement
was issued and vide appointment order dated  21.07.1997,  respondent  No.  1
was appointed as  part-time Lecturer  in Geography on  temporary basis  upto
30.04.1998.   On 21.03.1998, the Nagpur University (respondent No.2  herein)
granted approval to the  appointment  of  respondent  No.1  as  a  part-time
Lecturer.
5.    According to the  respondent  No.1,  he  was  appointed  as  full-time
Lecturer. The respondent  No.1  also  made  a  complaint  to  the  Grievance
Committee of the University to  this  effect.   However,  vide  order  dated
31.03.1998 (Ann. 5), the services of respondent No.1 were terminated  w.e.f.
30.04.1998.
6.    Challenging the order of termination, respondent No.1 filed an  appeal
being Appeal No. N-10 of 1998 before the University  and  College  Tribunal,
Nagpur (in short  “the  Tribunal”)  under  Section  59  of  the  Maharashtra
University Act, 1994. By order dated 05.08.1998, the Tribunal dismissed  the
appeal and upheld the termination order. It was  held  that  the  respondent
No.1 was not appointed on a regular basis but his appointment  was  only  on
temporary/ad-hoc basis and it was  for  a  specified  term  as  a  part-time
Lecturer.
7.    The respondent No.1, felt aggrieved, filed a writ petition being  Writ
Petition No. 2374 of 1999 before the High Court praying  for  setting  aside
of the order of Tribunal dated 05.08.1998  passed  in  Appeal  No.  N-10  of
1998.  The High Court vide order dated 16.12.2008 partly  allowed  the  writ
petition and set aside  the  order  of  Tribunal  dated  05.08.1998  and  in
consequence also set aside the termination order dated 31.03.1998. The  High
Court further directed the Management to reinstate the  respondent  No.1  in
services but without payment of any back wages to the respondent No.1.
8.    Challenging the said order, the College filed an appeal  being  L.P.A.
No. 26 of 2009 before the Division Bench of the High Court.
9.    By order dated 23.06.2009, the Division Bench disposed of  the  appeal
and remanded the matter to the Single Judge of the High Court  for  deciding
it afresh on merits.
10.   After remand, the writ petition was restored to its  original  number,
i.e. W.P. No.  2374  of  1999.  It  was,  however,  dismissed  for  want  of
prosecution by order dated 08.07.2010.
11.   Thereafter an application being Civil Application No. 149 of 2010  was
filed by respondent No.1 for restoration of the writ petition. It  was  also
dismissed in default on 08.04.2011.
12.    In  2012,  the  respondent  No.1  filed   another   application   for
restoration of the writ petition.   It  is,  however,  not  clear  from  the
pleadings as to by which order, the Writ Petition was restored to its  file.
Be that as it may, vide  impugned  judgment  dated  01.08.2014,  the  Single
Judge allowed the writ  petition,  set  aside  the  order  dated  05.08.1998
passed by the Tribunal in Appeal No. N-10/1998 and quashed  the  termination
order dated 31.03.1998. It was held that the advertisement  (Ann.1)  nowhere
said that the appointment is temporary. It was  also  held  that  since  the
appointment was made on the basis of selection and interview  and  hence  it
has to be held as permanent. The  direction  was  issued  to  reinstate  the
respondent No. 1 in service but without paying him any back wages  for  long
intervening period.
13.   Challenging the said judgment,  the appellants have filed this  appeal
by way of special leave before this Court.
14.   Heard Mr. A.K. Sanghi, learned senior counsel for the  appellants  and
Mr. Nitin Bhardwaj, learned counsel for respondent No.1, Mr. Kishor  Lambat,
learned counsel for respondent No.2 and Ms. Shubhada K. Phattankar,  learned
counsel for respondent No.3.  We have also perused the  written  submissions
filed by the parties.
15.   Mr. A.K. Sanghi, learned Senior Counsel appearing for  the  appellant,
 urged two points. In the first place, learned counsel  contended  that  the
Single Judge of the High Court erred in allowing the writ petition filed  by
respondent No.1 and  thereby  erred  in  setting  aside  the  order  of  the
Tribunal which had rightly upheld the termination order of respondent No.1.
16.   In the second place, Mr. Sanghi pointed out that  the  appointment  of
respondent No.1 to the post of Lecturer was part-time in nature as is  clear
from the advertisement (Ann.1).  Learned counsel further  pointed  out  that
the appointment being temporary as well as for a fixed period  as  is  clear
from the appointment orders (Annexures 2 & 3), the respondent  No.1  had  no
right to claim the status of permanent employee in service for want  of  any
material and seek the relief of regularization and reinstatement.
 17.  Learned counsel  further  submitted  that  since  the  appointment  of
respondent No.1 is  regulated  and  controlled  by  the  provisions  of  the
Maharashtra Employees of Private Schools (Conditions of Service)  Regulation
Act, 1977 (in short "The Act"), the nature of respondent No.1’s  appointment
coupled with the legality  and  correctness  of  the  termination  order  is
required to be decided in the first instance in the light  of  the  relevant
provisions of the  Act.  Learned  Counsel  contended  that  the  High  Court
unfortunately did not even take note of any provision of the Act  which  has
application to the facts of the case.
18.   Learned counsel then submitted that this Court  had  the  occasion  to
examine this very question, which is the subject matter  of  this  case,  in
the case of Hindustan Education Society & Anr.  vs.  SK.  Kaleem  SK.  Gulam
Nabi & Ors reported in (1997) 5 SCC 152  wherein  this  Court  examined  the
question in the light of the  provisions  of  the  Act  and  held  that  the
appointment  of  the  employee  concerned  was  temporary  in  nature   and,
therefore, he could not be considered as  permanent  employee.   This  Court
repelled all the submissions of the employee, which were pressed in  service
for challenging the order of termination, and upheld the  termination  order
as being legal.
19.   Learned  Counsel,  therefore,  submitted  that  keeping  in  view  the
provisions of  the  Act  and  the  law  laid  down  in  Hindustan  Education
Society's case (supra), which again was  not  taken  note  of  by  the  High
Court, the impugned order cannot be said to be  passed  in  conformity  with
the law and hence it is not legally sustainable. It was  lastly  urged  that
the writ petition filed by respondent  No.1  is,  therefore,  liable  to  be
dismissed by upholding the order of the Tribunal and in consequence  of  the
termination order.
20.   In reply, learned counsel for  respondent  No.1  (employee)  supported
the impugned order and contended that no case is made out to set  aside  the
impugned order as the same is based  on  proper  reasoning  calling  for  no
interference therein.
21.   Having heard the learned counsel for the parties  and  on  perusal  of
the record of the case, we find force in  the  submissions  of  the  learned
counsel for the appellants.
22.   In our considered opinion, learned counsel for the appellants  rightly
argued that the rights of the parties to the case at hand  are  governed  by
the provisions of the Act and, therefore,  question  involved  in  the  case
needs to be decided keeping in view the provisions of the Act  and  the  law
laid down in Hindustan Education Society's case  (supra)  which  applies  to
the facts of this case.
23.   Since the question involved in the case is  squarely  covered  by  the
law laid down in Hindustan Education society’s case (supra), it is  apposite
to reproduce the decision in full rather than to  mention  its  ratio  only.
It reads as under:
“3………The admitted position is that Respondent 1 came to be appointed on  10-
6-1992 against a clear vacancy with the following stipulation:
“Your appointment is purely temporary for a period of 11 months  from  11-6-
1992 to 10-5-1993 in the clear vacancy. After expiry  of  the  above  period
your service shall stand terminated without any notice.”
4. Thus, it could be seen that the appointment of the first  respondent  was
only a temporary appointment against a clear vacancy. The  appointments  are
regulated and controlled by the provisions of the Maharashtra  Employees  of
Private School (Conditions of Service) Regulation Act, 1977.  Section  5  of
the Act postulates as under:
“5.  Certain  obligations  of  Managements  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 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 in such vacancy, ascertain  from
the Educational Inspector, Greater Bombay,  or  as  the  case  may  be,  the
Education Officer, Zilla Parishad, 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  shall  be  on
probation for a period of two years.  Subject  to  the  provisions  of  sub-
sections (3) and (4), he shall, on completion of this  probation  period  of
two years, be deemed to have been confirmed.
(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  of  one  month  in  lieu  of
notice.
(4) If the services of any probationer are terminated under sub-section  (3)
and he is reappointed by the Management in the  same  school  or  any  other
school belonging to it within a period of one year from the  date  on  which
his services were terminated, then the period of probation undergone by  him
previously shall be taken into consideration  in  calculating  the  required
period of probation for the purposes of sub-section (2).
(4-A) Nothing in sub-sections (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 sub-section (1).
(5) The Management may fill in  every  temporary  vacancy  by  appointing  a
person duly qualified to fill such vacancy. The order of  appointment  shall
be drawn up in the form prescribed in  that  behalf,  and  shall  state  the
period of appointment of such person.”

5. In view of the above and the order of  appointment,  the  appointment  of
the respondent was purely temporary for a  limited  period.  Obviously,  the
approval  given  by  the  competent  authority  was   for   that   temporary
appointment. As regards permanent appointments, they are regulated  by  sub-
sections (1) and (2) of  Section  5  of  the  Act  according  to  which  the
Management shall, as soon as possible, fill up, in  the  manner  prescribed,
every permanent vacancy in a private school by appointment of a person  duly
qualified to fill in such vacancy. Every person so appointed  shall  be  put
on probation for a period of two years subject to  the  provisions  of  sub-
sections (4) and (5). He shall, on completion of  the  probation  period  of
two years, be confirmed.

6. Under these circumstances, the appointment of the  respondent  cannot  be
considered to be a permanent appointment. As a  consequence,  the  direction
issued by the High Court in the impugned judgment dated  31-7-1996  in  Writ
Petition No. 5821 of  1995  that  he  was  regularly  appointed  is  clearly
illegal and cannot be sustained.

7. The appeal is, accordingly, allowed. The order of the High  Court  stands
reversed and the writ petition stands dismissed. No costs.”

24.   Mere perusal of the aforementioned decision, which  also  mentions  in
verbatim Section 5 of the Act, would go to show that the concerned  employee
(writ petitioner) was appointed for  a  fixed  period  (11  months)  by  the
Management. His services were, therefore, brought to an end  on  the  expiry
of the period by the Management by passing a termination  order  which  gave
rise to filing of the writ petition by  the  concerned  employee.  The  High
Court allowed the writ petition and set aside the termination order. It  was
held that  the  writ  petitioner  was  regularly  appointed  in  service  on
selection and hence the termination order treating him to be  temporary  was
bad in law. The Management, felt aggrieved of the order of High Court,  came
in appeal to this Court. This Court  by  aforementioned  order  allowed  the
Management’s appeal, set aside  the  order  of  the  High  Court  and  while
dismissing the employee’s writ petition upheld  the  termination  order.  It
was held  that  the  appointment  of  the  writ  petitioner  (employee)  was
governed by Section 5 of the Act. It was further held that  the  appointment
was temporary in nature as is clear from the appointment  order  itself  and
being for a fixed period, it was terminable on the expiry of the period.  It
was also held that since the permanent appointment was also governed by sub-
sections (1) and (2) of Section 5, it was for  the  Management  to  initiate
and fill  up  the  post  on  permanent  basis  by  following  the  procedure
prescribed in Section 5 of the Act. It  was  also  held  that  the  sanction
granted by the competent  authorities  was  confined  to  writ  petitioner’s
temporary  appointment  and  such  grant  of  sanction  did  not  result  in
conferring any permanent status on the writ petitioner.
25.   Coming now to the facts of  the  case  at  hand,  we  find  remarkable
similarity in the facts of  the  case  at  hand  and  the  one  involved  in
Hindustan Education Society’s Case (supra). In the case at  hand,   we  find
from the two appointment orders that the  respondent  No.1  was  temporarily
appointed as Lecturer for one Session in  the  first  instance  and  on  the
expiry of the first period, his appointment came to an end.  The  respondent
No.2 then was appointed afresh second time, which period was  then  extended
up to 30.04.1998. We further find from the advertisement that  the  post  of
Lecturer for Geography was advertised as a part-time post.
26.    The relevant extract from the  appointment  orders  dated  20.07.1996
(Annexure-2) and 21.07.1997 are quoted infra:
      Order dated 20.07.1996
 “Your appointment is temporary for  one  session  from  1.8.96  to  30.4.97
period of one session.  Your services  are  likely  to  be  discontinued  by
giving one month’s notice on either side.”

Order dated 21.07.1997
“Your appointment is on temporary basis upto 30.04.1998.  Your services  are
likely to be discontinued by giving one month’s notice on either side.”

27.   We also find that the approval for the aforementioned appointment  was
accorded by the concerned authority vide letter dated 21.03.1998, as  it  is
without adding any more rights. Taking  these  facts  in  consideration  and
keeping in view the law laid down  in  Hindustan  Education  Society’s  case
(supra), we are of the view  that  appointment  of  the  respondent  No.  1,
whether first or second, since inception remained a  “temporary  appointment
as part-time lecturer” for a fixed period and did not result  in  “permanent
appointment” on the post of Lecturer. It also did not create  any  right  in
favour of respondent No. 1 so as to enable him to  claim  regularization  in
service.

28.   We also find that it is not the case of respondent No.1  and  nor  any
finding was recorded by the High Court that the Management had followed  the
procedure prescribed under  sub-sections  (1)  and  (2)  of  Section  5  for
filling the post against the permanent clear  vacancy  while  selecting  the
respondent No. 1.  On the other hand, we find as mentioned  above  that  the
High Court neither took  note  of  the  provisions  of  the  Act  much  less
examined the question arising in the case in the context of  the  provisions
of the Act and nor examined the question in the light of the law  laid  down
in Hindustan Education Society’s Case (supra).  We  also  do  not  find  any
material to hold  that  the  initial  appointment  of  respondent  No.1  was
against the permanent vacancy and that he was appointed permanently  by  the
Management by following the procedure prescribed under sub-sections (1)  and
(2) of Section 5 of the Act.
29.   In our view, when the rights of the parties are governed by  the  Act,
then it is necessary for the Court in  the  first  instance  to  decide  the
rights in the light of the  mandate  of  the  provisions  of  the  Act.  The
respondent No. 1 neither challenged the constitutional validity of  the  Act
and nor challenged the termination on the ground of mala fides  attributable
against any particular authority. The respondent No. 1 was also not able  to
point out any arbitrariness in the impugned action to enable the High  Court
to invoke Article 14  of  the  Constitution  for  quashing  the  termination
order. In these circumstances,  we  are  of  the  view  that  there  was  no
justification for the High Court to hold  that  the  respondent  No.  1  was
appointed on permanent basis and that termination order was bad in law.

30.   In view of foregoing discussion, we cannot concur with the view  taken
by the High Court, which, in our opinion, is not legally sustainable.

31.   The appeal thus succeeds and is allowed. Impugned order is  set  aside
and that of the Tribunal restored. As a result, the writ petition  filed  by
respondent No.1 (employee) stands dismissed and the termination order  dated
31.03.1998 is upheld as legal.


                     ………...................................J.
                                  [J. CHELAMESWAR]


                  …...……..................................J.
                               [ABHAY MANOHAR SAPRE]     New Delhi;
July 19, 2016









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