Jaihindcomprehensive Eduational Institute, Narayangaon, Through Chairman / Secretary And Anr vs Mrs. Pratibha Suryabhan Arote And Anr

CNR No : HCBM010014922014


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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Digitally signed
by
HUSENBASHA
RAHAMAN
NADAF
Date:
2026.10.29
19:27:56 +0530
HUSENBASHA
RAHAMAN
NADAF
WRIT PETITION NO. 1757 OF 2014
1. Jaihind Comprehensive Educational )
Institute, Narayangaon through its )
Chairman/Secretary )
2. JCEI’s Institute of Technology, )
Kuran Taluka, Junnar, District Pune ) ..Petitioners
Versus
1. Mrs. Pratibha Suryabhan Arote )
Residing at 10 Post, Barav, Taluka )
Junnar, District Pune )
2. Joint Director of Technical Education, )
Regional Office, 412, “E” Shivaji Nagar )
Bahirat Patil Chowk, Pune 411 016 ) ..Respondents

Mr. Kiran S. Bapat, Senior Advocate a/w Mr. Gaurav S. Gawande &
Mr. T.R. Yadav i/b Mr. Avinash Fatangare for the Petitioners.
Mr. Suresh Pakale, Senior Advocate a/w Mr. Nilesh Desai i/b Mr.
Avinash Belge for Respondent No. 1.
Mr. P.V. Nelson Rajan, AGP for the Respondent/State.

CORAM : M.M. SATHAYE, J.
th
DATE : 28 OCTOBER, 2026
JUDGMENT :
1. Petitioner No. 1 is an educational institute running Petitioner
No. 2/College. The Petitioners are challenging judgment and order
dated 21.11.2013 passed by Presiding Officer, School Tribunal, Pune
in Appeal No. 37 of 2012. By the said impugned order, appeal filed by
Respondent No. 1 (Lecturer) is allowed, declaring that her otherwise

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termination from 18.06.2012 is illegal and directing the Petitioners to
reinstate her to her original post with back wages and consequential
benefits.
2. Respondent No. 1 filed said appeal under Section 9 of the
Maharashtra Employees of Private Schools (Conditions of Service)
Regulation Act, 1977 & Rules, 1981 (‘the said Act’ and ‘the said Rules’
for short) contending inter alia as under. That she is M.Sc. duly
qulaified for the post of lecturer. That she belongs to open category.
That she was appointed as a lecturer and joined services w.e.f.
07.08.2009. That she completed probation successfully and became
permanent on 06.08.2011. That she was working in the College till
18.06.2012, when she was illegally terminated without any notice,
charge-sheet or inquiry. Therefore, her termination is illegal and
against the provisions of the said Act and said Rules. She contended
that her work and behavior was satisfactory and no memo or warning
was ever issued. That she has been victimized. She prayed for setting
aside otherwise termination and direction to reinstate her with full
back wages, continuity of service and other benefits.
3. The Petitioners filed reply contending inter alia as under. That
Respondent No. 1 was appointed on temporary basis. That she was
not appointed on probation. That she was not appointed on clear and
vacant post. That she was appointed only with intention to avoid
educational loss to students because at the relevant time, no
Scheduled Tribe (ST) category / reserved candidate was available
and the vacancy was for reserved post. That her services are not
terminated but have come to an end by efflux of time. Therefore,

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there is no requirement of issuing any show cause notice, charge-
sheet or inquiry. That Respondent No. 1 was appointed as lecturer for
physics subject w.e.f 08.08.2009 on temporary basis for academic
year 2009-10 and was again re-appointed for academic year 2010-11
on 01.07.2010. That the Director of Technical Education did not
approve the appointment as the post was reserved for ST candidate.
That Respondent No. 1 was well aware that her appointment was
against reserved category and therefore, cannot claim any relief.
4. Respondent No. 2 (concerned Joint Director of Technical
Education) contested the appeal contending inter alia that
Petitioner/Institute is an unaided private educational institute and
the State is not providing any sort of recurring or non recurring grant
or any other financial assistance to the Petitioners. Specific stand is
taken that Respondent No. 2 has no concern with the dispute.
5. The Tribunal by impugned order has allowed the appeal as
explained above.
SUBMISSIONS
6. Learned Senior Advocate Mr. Bapat appearing for the
Petitioner/Management contended as under.
6.1. That Respondent No. 1 was well aware of the terms of her
appointment.
6.2. That the appointment orders do not provide for probation and
are only for limited period. That last appointment order dated

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20.06.2011 clearly states that the appointment is against post
reserved for ST category, apart from stating that the period of
appointment is limited to academic year and will stand terminated
without notice.
6.3. That Respondent No. 1 was temporarily appointed because the
reserved category candidate was not available.
6.4. That she is not appointed pursuant to advertisement. That the
claim of appointment on probation is contrary to record.
6.5. That an identically situated another lecturer by name Ms.
Seema Tulshiram Kharade (lecturer in Chemistry) had also filed
Companion Appeal No. 36 of 2012 in which the same Presiding
Officer held that the appointment was not on clear vacant and
permanent post and that no deemed permanency is attained and
there is no illegal termination and therefore the appeal of the said
another similarly situated lecturer was dismissed.
6.6. He submitted that after the said companion appeal was
dismissed, within a couple of days, the present Respondent No. 1
filed application before the Tribunal contending that she has lost faith
in the Tribunal and she will not get justice making reference to
dismissal of companion appeal and request for transferring the
appeal is going to be made, requesting that judgment may not be
delivered.
6.7. He submitted that the Tribunal passed an order on 29.08.2013
holding that appeal cannot lie without any progress when it is

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pending for judgment and thereafter on 21.11.2013 the same
Presiding Officer of the learned Tribunal took a diametrically opposite
view in respect of Respondent No. 1 holding that the appointment
was made in clear vacant and permanent post and Respondent No. 1
had attained deemed permanency and also that she was not
appointed against reserved category and allowed the appeal holding
alleged termination illegal and directing reinstatement with payment
of back wages.
6.8. He submitted that the Tribunal was not justified in taking such
opposite view and Respondent No. 1 had apparently resorted to
pressurizing tactics which seem to have succeeded. He relied on
Roznama and on following judgments in support of his case.
i. Sanjay Baban Gophane Vs. Deccan Education Society and Ors.
2026 SCC OnLine Bom 1162.
ii. Ramkrishna Chauhan Vs. Seth D.M. High School and Ors. (Full
Bench) 2013(2) Mh.L.J. 713.
7. Per contra, Mr. Pakale, learned Senior Advocate for the
Respondent No. 1, supported the impugned order, contending inter
alia that it is a well reasoned judgment and requires no interference.
He further submitted as under.
7.1. That the submissions about pressurizing tactics are
irresponsible, amounting to contempt of the Court. That without
making the concerned Presiding Officer as party, such allegations
should not have been made.
7.2. That the stand that appointment is not as per advertisement is

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not taken before Tribunal or in the written statement. That the
advertisement does not specify the post as temporary post. That since
advertisement was issued, procedure under the said Rules should be
deemed as followed and the appointment of Respondent No. 1 ought
to be ‘deemed as under probation’.
7.3. That the Presiding Officer of the Tribunal has shown courage to
render judgment on merits, despite application filed by Respondent
No. 1 for transfer of the case.
7.4. That Respondent No. 1 had gone on maternity leave and
therefore ought to have been given protection under the Maternity
Benefit Act, 1961. He submitted that the maternity leave application
with GR dated 23.12.2011 was submitted by Respondent No. 1 which
is noted in paragraph 10 of the impugned order. He submitted that
the Tribunal seems to have considered the maternity leave
application.
7.5. He further submitted that since the finding is based on
material, there is no perversity.
7.6. He also submitted that the performance of Respondent No. 1
was satisfactory, but only because she went on maternity leave, the
management resorted to otherwise termination.
7.7. He submitted that the form of appointment order is not
important and the substance is necessary to be seen.
7.8. He also submitted that employee has far less bargaining power

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and therefore form of appointment order be ignored. He relied on the
following judgments in support of his case.
i. Shikshan Prasarak Mandal, Wani Vs. Presiding Officer, 1995
(2) LLJ 176.
ii. Somesh Thapliyal and Anr Vs. Vice Chancellor, H N B Garhwal
University & Anr, 2021 (10) SCC 116.
iii. National Education Society’s High School and Junior College
Vs. Mrs. Lulomool Monachary, 1987 (2) Bom.C.R. 521.
iv. Municipal Corporation of Delhi Vs. Female Workers,
2000 (3) SCC 224.
REASONS AND CONCLUSION
8. I have considered the rival submissions and perused the record.
9. At the outset, it is necessary to note that no submission about
Respondent No. 1 taking maternity leave and relying on GR is argued
before the Tribunal. This argument seems to be advanced off hand,
for the first time, before this Court in writ jurisdiction. Hence the
same can not be and need not be considered. For the same reason, it
is not necessary to consider judgment of Municipal Corporation of
Delhi Vs. Female workers (supra) any further.
10. It must be noted that the facts of appeal filed by Respondent
No. 1 (Appeal No. 37 of 2012) and facts of companion appeal
(Appeal No. 36 of 2012) by Ms. Seema Tulshiram Kharade were
identical and both have been appointed on temporary basis and not
on probation. In such circumstances, the same Presiding Officer of
the Tribunal held all the issues in favour of the Management in the
case of Seema Kharade but came to a diametrically opposite findings

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against the Petitioner Management in the case of present Respondent
No. 1. Apparently, there is no reason for taking such opposite views in
almost identical factual situation. This puts a serious question mark
on the validity of the impugned order.
11. Nonetheless, it is necessary to examine the case on merits also.
12. The advertisement that was issued by the Petitioner/
Management is dated 24.06.2009 whereunder candidates were called
to attend the interview on 28 and 29 June, 2009. It is important to
note that the advertisement was for ‘walk in interview’. Record
further shows that the first order of appointment is issued much later
i.e. on 04.08.2009 and it is based on application and interview of
Respondent No. 1 dated 01.08.2009. It is therefore clear on facts that
Respondent No. 1 was not appointed pursuant to the advertisement
for walk in interview. Therefore, it cannot be said that the procedure
as contemplated under the Rules should be deemed to have been
followed and therefore the appointment must be deemed to be made
on probation. None of the appointment orders make any reference to
probation. All the three appointment orders clearly mentions the
appointment is for limited period of particular academic year. All the
appointment orders specifically make the appointment on purely
temporary basis. In fact, the last appointment order dated 20.06.2011
not only mentions that Respondent No. 1 was appointed for
particular academic year 2011-12, but it was specifically mentioned
that after the expiry of the said period the services would stand
terminated without any notice and it was also specifically mentioned
that the appointment is against the post reserved for ST category.

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13. In the teeth of such factual situation, it cannot be said that
Respondent No. 1 can be deemed to be on probation and the
argument of ‘substance over form’ cannot be accepted in the peculiar
facts of this case. For the same reason and for reasons to follow,
judgment of Shikshan Prasarak Mandal (supra) will not advance the
case of the Respondent No. 1. It is material to note that in this
judgment, the appointment letter indicated appointment on
probation, which is not the case here.
14. Having held that, it is now necessary to consider the sequence
of events as unfolded leading to passing of the present impugned
order. Roznama shows that the companion appeal was dismissed on
26.07.2013 and when the Court was busy in dictation of the
companion appeal, present appeal was adjourned. Within 3 days on
29.07.2013, Respondent No. 1 filed application Exh.44 requesting
not to deliver judgment as she has lost faith in the Tribunal and she
wants to make application for transfer of the matter. Then the matter
was adjourned. Thereafter, on 02.08.2013, 16.08.2013 and
29.08.2013, both Respondent No. 1 and her advocate remained
absent and no intimation was given about steps taken by Respondent
No. 1 for transfer application. Therefore the matter kept adjourning.
15. On 29.08.2013, the Tribunal passed an order holding that in
the interest of justice, already sufficient time and opportunity is given
to Respondent No. 1, but no intimation was given to the Tribunal. It
held that remedy is provided to the litigants to challenge the order
and decision and therefore the apprehension/fear expressed by
Respondent No. 1 is not legal and proper and it actually causes

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disturbance in judicial proceedings. It held that the appeal cannot
simply lie without progress when it is pending for judgment and
therefore it was adjourned for pronouncement of judgment. Even
thereafter, the Tribunal seems to have waited during the month of
September and waited till 11.10.2013. On the said day, the advocate
for Respondent No. 1 remained present and submitted that the
Respondent No. 1 wanted to tender apology before the Court as she
was provoked by some union and therefore was misguided. On a
query by the Court about transfer application, nothing was disclosed
and intention to apologize was reiterated seeking adjournment. On
18.10.2013 both Respondent No. 1 and advocate remained absent.
Thereafter till 21.11.2013, the Respondent No. 1 and his advocate
remained absent. Ultimately impugned judgment was pronounced
allowing the appeal, taking opposite view compared to companion
appeal.
16. This sequence of events clearly establishes an unfortunate
situation where Respondent No. 1 apparently resorted to high
handed methods of applying to the Tribunal expressing loss of faith
and seeking adjournment on the ground of proposed transfer
application. This must have created unpleasant situation and hurdle
in the work of the Tribunal, who seems to have adjourned the matter
thereafter giving opportunity to Respondent No. 1 to act on the
proposed transfer application. However nothing was shown to have
been done about transfer application. Faced with the situation that
the appeal was already heard and kept for judgment, the Tribunal
seems to have delivered a judgment taking diametrically opposite

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view as compared to the companion appeal.
17. I do not propose to enter into the controversy as to whether the
Tribunal was pressurized and or about circumstances in which the
Tribunal has rendered the impugned order. Suffice it to observe that
the Tribunal has not considered the material on record in proper
perspective and it has perversely held that Respondent No. 1 has
attained deemed permanency relying on National Education Society’s
High School (Supra). It is important to note that this judgment has
been considered by the Full Bench of this Court in Ramkrishna
Chauhan (Supra) relied upon by the Petitioners.
18. In Ramkrishna Chauhan (Supra), the Full Bench has clarified
that neither Section 5(1) nor Section 5(2) of the said 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. It
is further clarified that 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 made on probation
for a period of 2 years. The Full Bench has clarified that 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. After considering Rules 9 and 10 of the said Rules, the
Full Bench has clarified that 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

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provision in the said Act forbidding the Management from exercising
that power. The Full Bench has also clarified 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. In this respect the Full Bench has considered the
judgment of National Education Society’s High School (Supra) relied
upon by the Tribunal, and has held in paragraph 25 that it is not
possible to countenance the exposition of law and view taken in
National Education Society’s High School (Supra). It is ultimately
held by the Full Bench that it is not open for the School Tribunal to
assume as of fact that the appointment made against clear and
permanent vacancy is deemed to be on probation. It is held that the
Tribunal cannot disregard the terms and conditions of the letter of
appointment, if it expressly provides that appointment is on
temporary basis, for a limited term. This judgment rendered by the
Full Bench of this Court, clearly supports the case of the
Petitioner/Management in letter and spirit. In Sanjay Baban Gophane
(Supra), the view taken by the Full Bench in Ramkrishna Chauhan
(Supra) has been recently followed.
19. It will not be out of place to state here that the legal principle
iterated by the Full Bench is that if parties accept 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 terms and conditions stipulated therein
were not legally valid. In the present case, the Respondent No. 1 has

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accepted temporary appointment for limited period not once, but
thrice. Therefore it can not be argued now, based on Somesh
Thapliyal (supra), that there was no equal bargaining power with
Respondent No. 1. It will not be out of place to note that in Somesh
Thapliyal (supra), the appointment was after following due process,
which is not the case here.
20. In the teeth of above legal and factual position, the Tribunal
has clearly erred in holding that Respondent No. 1 was appointed
after following due procedure of law by publishing advertisement in
the newspaper showing post of lecturer for physics subject as one
post. The Tribunal has also erred in holding that she was appointed
pursuant to advertisement, completely ignoring the wording of the
first appointment letter and date mentioned therein. This is already
explained above.
21. The Tribunal has also erred in holding that she attained status
of deemed permanency by presuming that the appointment was on
probation, which is not borne out from the record. Then the Tribunal
perversely held that since the appointment was on probation and she
was deemed permanent and since there was no incident of
misbehavior or complaints, she could not have been otherwise
terminated without inquiry. All these reasons of the Tribunal are in
complete ignorance of the fact that Respondent No. 1 was appointed
on temporary basis and not on probation and for limited period.
22. In the aforesaid facts and circumstances and for reasons
indicated above, the impugned order cannot be sustained, being

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found perverse. Therefore, interference is required.
23. By an order dated 14.02.2014, the impugned order was stayed.
Thereafter, by a reasoned order dated 13.08.2014, the petition was
admitted and stay was continued, subject to the
Petitioner/Management depositing in this Court the amount of back
wages as ordered by the Tribunal. Record further shows that on
07.11.2014 the Petitioner/Management deposited amount of
Rs.5,16,465/- in this Court within the extended time permitted by
this Court. The impugned order has remained stayed from February
2014 till today for long 12 years and 8 months.
24. In the result, the petition is allowed. The impugned order
dated 21.11.2013 passed in Appeal No. 37 of 2012 is quashed and set
aside. However, Respondent No. 1 is permitted to withdraw the
amount deposited by the Petitioners in this Court with interest
accrued, if any.
25. Writ petition is disposed of and Rule is made absolute in above
terms. No order as to costs.
26. All concerned to act on duly authenticated or digitally signed
QR verifiable copy of this order.
(M.M. SATHAYE, J.)

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