Full Judgment Text
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PETITIONER:
HINDUSTAN EDUCATION SOCIETY & ANR.
Vs.
RESPONDENT:
SK. KALEEM SK. GULAM NABI & ORS.
DATE OF JUDGMENT: 10/03/1997
BENCH:
K. RAMASWAMY, G.T. NANAVATI
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Since respondent No.1, it is reported, has refused to
receive the notice, it must be deemed to be sufficient
notice. Respondent Nos.5 and 7 have been served. But they
are appearing nether in person nor through counsel.
Leave granted.
Since the respondents are appearing neither in person
nor through counsel, we have taken the assistance of Shri
Deshpande, learned counsel appearing for the appellants and
gone through the relevant rules and orders of appointment.
The admitted position is that respondent No.1 came to be
appointed on June 10, 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."
Thus, it could be seen that the appointment of the
first respondent was only a temporary appointment against a
clear vacancy. The appointments are 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 the manner
prescribed every permanent vacancy
in a private school by appointment
of a person duly qualified to fill
in such vacancy.
Providing that, unless such
vacancy is to be filled in by
promotion, the Management shall,
before proceeding to fill in such
vacancy, ascertain from the
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Educational Inspector, greater
Bombay, or as the case may be, the
Education 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-section (4) and (5), 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 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).
(4A) Nothing in sub-sections (2),
(3) or (4) shall apply to 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."
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 of two years subject to the
provisions of sub-section (4) and (5). He shall, on
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completion of the probation of period of two years, be
confirmed.
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 July 31, 1996 in
writ petition No.5821/95 that he was regularly appointed is
clearly illegal and cannot be sustained.
The appeal is, accordingly, allowed. The order of the
High Court stands reversed and the Writ Petition stands
allowed. No costs.