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
-----------------------
22
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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