As per case facts, the petitioner, a Shikshan Sevak, was orally terminated from her service after being selected through a regular recruitment process against a sanctioned vacant post. Her appointment ...
wp8021-2016-J.doc
AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8021 OF 2016
Dipti Madhukar Sheth … Petitioner
Vs.
1.Borivali Education Society
2.Seth G.H. High School
3.The Education Inspector,
(West Zone), Greater Mumbai
4.The Dy. Director of Education
(Higher Education), Gr. Mumbai.
5.Bhavana Shah
6.Zankhana Desai
7.State of Maharashtra … Respondents
Mr. Mihir Desai, Senior Advocate with Ms. Sanskruti
Yagnik i/by Ms. Rishika Agarwal for the petitioner.
Mr. Himanshu Kode for respondent Nos.1 and 2.
Mrs. A.A. Purav, AGP for respondent Nos.3, 4, and 7-
State.
CORAM :AMIT BORKAR, J.
RESERVED ON :JULY 27, 2026.
PRONOUNCED ON:JULY 31, 2026
JUDGMENT:
1.By the present writ petition under Articles 226 and 227 of
the Constitution of India, the petitioner is challenging otherwise
termination with effect from 1 September 2012 orally preventing
1
ATUL
GANESH
KULKARNI
Digitally signed by
ATUL GANESH
KULKARNI
Date: 2026.07.31
11:15:29 +0530
wp8021-2016-J.doc
her from resuming duty in respondent No.2 School and the
impugned Judgment and Order dated 12 January 2016 passed by
the Presiding Officer, School Tribunal, Mumbai passed in Appeal
No.16 of 2014.
2.Facts giving rise to the filing of the present writ petition, as
narrated by the petitioner are that the record shows that from 18
January 2005 the petitioner was working in respondent No. 2
School. According to the petitioner, though she was continuously
working, the School deliberately gave her artificial breaks in
service. It is her case that she continued to work because the
School authorities orally assured her that as soon as a regular post
became available, she would be appointed and confirmed as a
Shikshan Sevak. Thereafter, on 22 December 2010, respondent No.
2 School published an advertisement in the daily newspaper Times
of India inviting applications for the post of Shikshan Sevak. The
petitioner submitted her application pursuant to the said
advertisement and participated in the selection process.
3.On 10 January 2011, after completion of the selection
process, the petitioner came to be selected and was appointed as a
Shikshan Sevak in respondent No. 2 School. According to the
petitioner, the appointment was made against a sanctioned post
which had become vacant on 3 June 2010 on account of the
retirement of one Kusumaben Vasa. However, despite the
availability of the sanctioned vacancy, respondent Nos. 1 and 2 did
not discharge their obligation of forwarding a proposal for
approval of her appointment. As a result, on 21 January 2012,
respondent No. 3 declined to grant approval to the petitioner's
2
wp8021-2016-J.doc
appointment.
4.Thereafter, on 31 August 2012, the Headmistress of
respondent No. 2 School called the petitioner to her office and
orally informed her not to report for duty from 1 September 2012
onwards. According to the petitioner, no written order was issued
and no reason whatsoever was communicated to her for
preventing her from resuming her duties.
5.Being aggrieved, on 14 September 2012, the petitioner
addressed a written representation to respondent No. 2 requesting
that she should be permitted to resume her duties as a full-time
Shikshan Sevak. However, according to the petitioner, despite the
said request, she was not allowed to join her duties.
6.On 22 February 2013, respondent No. 3 called upon
respondent No. 1 Management to explain the reasons for
preventing the petitioner from signing the muster roll. Thereafter,
on 17 April 2013, the petitioner formally recorded her objection
against what she described as her oral termination. After
considering the matter, the Education Inspector addressed a
communication to the School stating that although the reason
shown for discontinuing the petitioner's services was non-
availability of vacancy, the official record disclosed that one vacant
post was available in the School. Thereafter, on 11 July 2013,
respondent No. 4 directed respondent No. 3 to initiate an inquiry
into the circumstances in which the petitioner's services had been
brought to an end. Since no effective relief was granted, during the
year 2013 the petitioner approached the School Tribunal by filing
3
wp8021-2016-J.doc
an appeal challenging the termination of her services.
7.In the proceedings before the School Tribunal, the
respondents filed their reply on 24 January 2014. Thereafter, on
21 July 2014, they also filed their written statement. On the very
same day, namely, 21 July 2014, the petitioner filed her affidavit in
rejoinder placing on record her response to the stand taken by the
respondents.
8.After hearing the parties, the School Tribunal delivered its
judgment on 12 January 2015. The appeal filed by the petitioner
was partly allowed. However, the Tribunal did not grant the relief
of reinstatement. Being dissatisfied with the denial of
reinstatement, the petitioner challenged the said judgment before
this Court. By order dated 11 September 2015, this Court set aside
the relevant part of the Tribunal's decision and remanded the
matter to the School Tribunal for fresh consideration in accordance
with law.
9.After the remand, the School Tribunal again considered the
matter and, by its judgment dated 12 January 2016, re-examined
the entire dispute on merits. According to the petitioner, instead of
confining to the scope of the remand, the Tribunal reconsidered
the whole case afresh and concluded that the petitioner was not
entitled to the relief of reinstatement.
10.Mr. Desai, the learned Senior Advocate appearing for the
petitioner, submitted that the learned School Tribunal failed to
properly consider the petitioner's right to the relief of
reinstatement. According to him, the Tribunal ignored the material
4
wp8021-2016-J.doc
fact that one vacant post was available even at the time when
other surplus teachers were absorbed. He submitted that the
petitioner herself was working against that very post. However,
instead of allowing her to continue in service, the respondent
Management took advantage of the orders relating to absorption
of surplus teachers and terminated her services. According to him,
such action was beyond the powers of the respondent
Management. He submitted that at the time of termination, the
petitioner was on the verge of completing three years of service as
a Shikshan Sevak and, therefore, the Management ought to have
continued her either on the post on which she was working or on
the vacant sanctioned post. He pointed out that the existence of
the vacant post was evident from the information furnished by the
respondent Management and was also recorded in the earlier
judgment and order dated 12 January 2015. On these grounds, he
contended that the impugned judgment and order dated 12
January 2016 cannot be sustained in law and deserves to be
quashed and set aside.
11.Mr. Desai submitted that under the relevant provisions, the
services of a probationer can be terminated during the period of
probation only if, in the opinion of the Management, the
probationer's work or conduct is found to be unsatisfactory. Even
in such a case, the Management is required to give one month's
notice or pay one month's salary or honorarium in lieu of such
notice before terminating the services. According to him, no such
procedure was followed in the present case and, therefore, the
action of the respondent Management was contrary to law.
5
wp8021-2016-J.doc
12.Per contra, Mr. Kode, the learned Advocate appearing for the
respondent Management, submitted that before the School
Tribunal the only issue which was argued was with regard to the
minority status of the Management. He submitted that the
provisions of Section 5(3) are not applicable to the facts of the
present case because the said provision applies only to an Assistant
Teacher appointed on probation. According to him, the petitioner
had not attained the status of an Assistant Teacher on probation,
as she was still serving as a Shikshan Sevak. He submitted that
such status could be acquired only after successful completion of
three years of service as a Shikshan Sevak and, since the petitioner
had not completed that period, she could not claim the protection
available under Section 5(3).
REASONS AND ANALYSIS:
13.I have read the pleadings, papers placed on record,
judgments passed by the School Tribunal dated 12 January 2015
and 12 January 2016, submissions made by learned advocates for
both sides and also the judgments relied upon by them. After
seeing all these materials together, it appears that dispute is not
only whether termination of the petitioner was or illegal. Main
dispute is also about what protection a Shikshan Sevak gets under
the Maharashtra Employees of Private Schools (Conditions of
Service) Regulation Act, 1977, what is the position during
probation period and in what manner the Management can stop
service before probation period is completed.
6
wp8021-2016-J.doc
14.Mr. Desai learned Senior Advocate submitted that the
learned Tribunal did not consider the real controversy in correct
manner. According to him, the Tribunal discussed adjustment of
surplus teachers but failed to properly consider that one
sanctioned vacant post was available in the School. He submitted
that the petitioner was working on that post, and she was about to
complete three years as a Shikshan Sevak. Therefore, according to
him, merely because surplus teachers were adjusted, that could not
become reason for terminating the petitioner's service. He
submitted that in the earlier judgment dated 12 January 2015
there was discussion regarding existence of the vacant post.
Therefore, after remand, the Tribunal was not expected to ignore
that finding without recording reasons. This submission cannot be
ignored because if one sanctioned vacancy was available, then that
fact affects legality of discontinuance.
15.From the record, it appears that the petitioner was not
appointed against any leave vacancy or temporary vacancy. Her
case throughout has remained that vacancy became available on 3
June 2010 because one Kusumaben Vasa retired. Thereafter,
advertisement was issued and she was selected through regular
recruitment process. The respondents have also not disputed that
advertisement was published and that the petitioner participated
in the selection process. Therefore, at least from the available
material, it does not appear that the appointment was made
through any backdoor method or by ignoring the recruitment
procedure.
7
wp8021-2016-J.doc
16.Mr. Desai also submitted that respondent Nos.1 and 2 failed
to forward proposal for approval to the Education Department and
because of that omission respondent No.3 refused approval. If the
Management failed to perform its duty, then the employee should
not suffer because of such lapse. Mere refusal of approval cannot
by itself mean that the appointment was illegal. It is necessary to
see for what reason approval was refused and whether that reason
was because of the employee or because of the Management.
17.The petitioner also relied upon another circumstance.
According to her, from 1 September 2012 she was orally prevented
from resuming her duties. No written order was ever served upon
her. She submitted a representation requesting permission to
resume duties. The record shows that respondent No.3 called upon
the Management to explain why the petitioner was not permitted
to sign the muster roll. Thereafter, the Education Inspector
recorded that although the School stated there was no vacancy,
according to official record one vacant post was available. This
communication becomes important because it came from the
Education Department. If official record was showing one vacant
post, then the Management was expected to explain properly why
only the petitioner's service came to be discontinued.
18.One more circumstance also deserves consideration.
Respondent No.4 directed that inquiry should be initiated
regarding termination of the petitioner. Such direction indicates
that even the educational authorities were not satisfied that action
taken by the Management was legal. If there was no vacancy or if
the Management had acted according to law, then there would
8
wp8021-2016-J.doc
have been no occasion for directing such inquiry.
19.However, submissions made on behalf of the respondent
Management also require consideration. Mr. Kode submitted that
before the School Tribunal the only issue argued was regarding
minority status of the institution and not reinstatement under
Section 5(3). He submitted that Section 5(3) has no application
because the petitioner had not yet acquired status of Assistant
Teacher on probation. According to him, till completion of three
years as a Shikshan Sevak, she continued only as a Shikshan Sevak
and therefore could not claim protection available to an Assistant
Teacher appointed on probation.
20.This submission is required to be examined in light of
amendments discussed by the Coordinate Bench in
Principal, Our
Lady of Salvation High School v. Rashmi Upadhyay
, (2009) 3 Bom
CR 401. The said judgment holds that the Shikshan Sevak Scheme
was introduced by Government Resolution dated 13 October 2000.
Under that Scheme appointment was initially on honorarium for
three years and "Upon satisfactory completion of service over a
period of three years, the services of a Shikshan Sevak were to be
absorbed as a regularly appointed teacher." The Coordinate Bench
noticed that Maharashtra Act 14 of 2007 amended the MEPS Act
and inserted the definition of Shikshan Sevak. The Court quoted
Section 2(24A), which defines a Shikshan Sevak as:
"a member of base teaching cadre appointed on
honorarium ... for eventual appointment as a teacher."
9
wp8021-2016-J.doc
21.The Coordinate Bench thereafter observed that after
amendment, the Legislature intentionally changed the nature of
employment. The Court observed:
"The Legislature intended to bring Shikshan Sevaks within
the purview of the protection…"
22.It stated:
"What was earlier a matter of contract is converted
statutorily into status."
23.Again, the Court held:
"The appointment and conditions of service of Shikshan
Sevaks cease to be merely a matter of contract…"
24.These observations are of considerable importance. They
show that after amendment, service of a Shikshan Sevak cannot
remain only contractual employment which Management can end
only according to its own choice. After amendment, service
conditions became governed by provisions. The Coordinate Bench
also held that the Legislature amended the definition of
"employee" and included Shikshan Sevak within it. Therefore,
remedy under Section 9 also became available. The Court
specifically observed:
"The remedy of an appeal before the School Tribunal... is
available to Shikshan Sevaks inter alia against a termination
of service."
25.Therefore, submission made on behalf of the respondent that
a Shikshan Sevak has no protection cannot be accepted. It is true
that confirmation comes only after successful completion of three
years, but remedies become available because the Act includes a
10
wp8021-2016-J.doc
Shikshan Sevak within the definition of employee.
26.Still, this does not mean that every Shikshan Sevak gets
absolute right to continue in service till confirmation. Statutory
protection and right of confirmation are two separate matters.
27.The Full Bench in Gramin Yuvak Vikas Shikshan Mandal
Kinhi Naik
(2023) 4 Mah LJ 323 has explained the position
regarding probationers. The Full Bench held:
"the probationer has no right to his post and the termination
of service of probationer does not amount to dismissal or
removal by way of punishment."28.The Court observed:
"The purpose of any probation is to ensure that before the
employee attains the status of confirmed employee, he
should satisfactorily perform his duties and functions."
29.Again, the Court held:
"The probationers have no indefeasible right to continue in
employment until confirmed…"
30.Therefore, merely because the petitioner was close to
completing three years cannot create right to continue in service.
Completion of probation period and successful completion
according to law are not the same thing. The Full Bench has also
held that when the Management forms opinion that work or
behaviour of probationer is unsatisfactory, disciplinary inquiry is
not required. The Court observed:
"there is no requirement to initiate disciplinary proceedings
or departmental enquiry…" provided objective assessment
under Rule 15(6) exists.
11
wp8021-2016-J.doc
31.The Full Bench held:
"Only sub Rule (6) of Rule 15... applies to an employee
appointed on probation…" and observed that notice or
warning is not compulsory unless termination order is
stigmatic.
32.Therefore, submission of Mr. Desai that every probationer
must receive notice or departmental inquiry before termination
cannot be accepted as complete proposition of law. At the same
time, the Full Bench has nowhere held that the Management can
terminate a probationer without complying with Rule 15(6).
Rather, throughout the judgment, emphasis has been placed on
objective assessment. The Court specifically observed:
"the objective assessment of performance... by maintaining
the record of such assessment under Rule 15(6)... is
sufficient."
33.Therefore, although departmental inquiry may not be
necessary, objective assessment of work still remains mandatory.
34.In the present matter, the Management has never defended
the termination by saying that objective assessment of the
petitioner's work or behaviour was made, and she was found
unsuitable. Throughout, the stand taken by the Management has
been that there was no vacancy. On the other hand, the Education
Inspector recorded that according to official records one vacancy
was available. Therefore, reason put forward by the Management
was not unsatisfactory work under Section 5(3), but alleged non-
availability of vacancy.
12
wp8021-2016-J.doc
35.This distinction assumes importance. If termination had been
based upon unsatisfactory performance, then principles laid down
by the Full Bench would apply. But where the Management says
that there was no vacancy, then this Court has first to examine
whether such vacancy was not available. Unless this fact is
established, reliance upon principles governing probation cannot
sustain the termination.
36.Further, no material has been produced before this Court to
show that the Head of the institution made any objective
assessment of the petitioner's performance as contemplated by
Rule 15(6). No assessment record has been placed on record. No
finding has been recorded by the Tribunal that Rule 15(6) stood
complied with. Even before this Court, the Management has not
defended its action on that basis. Therefore, protection recognised
by the Full Bench regarding simple termination of probationer on
ground of unsatisfactory performance cannot validate the
impugned action.
37.After considering the material, this Court is unable to accept
the submission of the petitioner that merely because she had
almost completed three years she acquired indefeasible right of
confirmation. The Full Bench has taken a different view. At the
same time, this Court is also unable to accept submission of the
respondent Management that the petitioner, being only a Shikshan
Sevak, had no protection whatsoever.
Rashmi Upadhyay holds that
a Shikshan Sevak is an employee under the MEPS Act and is
entitled to remedies available under the Act.
13
wp8021-2016-J.doc
38.Therefore, real issue is not whether the petitioner was
probationer or whether she had become confirmed. Real issue is
whether the Management has shown that discontinuance of the
petitioner's service was made according to provisions governing a
Shikshan Sevak and whether reasons assigned by the Management
are supported by the record. On the material available, stand of
the Management regarding non-availability of vacancy is
contradicted by the communication issued by the Education
Inspector. At the same time, there is no material showing objective
assessment of the petitioner's work as required by Rule 15(6). The
Tribunal also failed to examine these material aspects.
39.For all these reasons, findings recorded in the impugned
judgment dated 12 January 2016 cannot be sustained. The
Tribunal failed to appreciate protection available to a Shikshan
Sevak under the amended provisions of the MEPS Act. It also
overlooked the material regarding sanctioned vacancy and failed
to examine whether mandatory requirement of objective
assessment under Rule 15(6), as explained by the Full Bench, was
complied with. Therefore, the impugned judgment suffers from
error and cannot be allowed to stand.
40.The petitioner has prayed for grant of back wages. However,
it is well settled that grant of back wages does not follow because
termination is held to be illegal. A person claiming back wages is
expected to state on oath that after termination of service he or
she was not gainfully employed elsewhere during the intervening
period. In the present case, the petitioner has not made any such
statement on oath that after her services came to be terminated,
14
wp8021-2016-J.doc
she remained unemployed or was not earning any income from
any other employment till disposal of the proceedings. In absence
of such pleading and statement on oath, this Court is not in a
position to presume that the petitioner had no earnings during that
period. Therefore, though the petitioner is entitled to continuity of
service and other consequential benefits, she is not entitled to
claim back wages.
41.In view of the foregoing discussion, and upon overall
assessment of the material record, the following order is passed:
(i) The Writ Petition is allowed;
(ii) The judgment and order dated 12 January 2016 passed
by the School Tribunal is quashed and set aside;
(iii) The termination of the petitioner's services with effect
from 1 September 2012 is declared to be illegal and is
hereby set aside;
(iv) The respondent Nos.1 and 2 are directed to reinstate
the petitioner in service on the post of Shikshan
Sevak/Assistant Teacher, as may be permissible in law, within
a period of eight weeks from the date of receipt of this order;
(v) The petitioner shall be entitled to continuity of service
for all purposes, including seniority and pensionary benefits,
together with all other consequential service benefits flowing
from such continuity;
(vi) The petitioner shall not be entitled to back wages, as
she has failed to plead and state on oath that she was not
15
wp8021-2016-J.doc
gainfully employed after termination of her services and
during the intervening period till disposal of the proceedings;
(vii) Respondent Nos.1 and 2 shall submit an appropriate
proposal to the competent Education Authority for approval
of the petitioner's appointment/reinstatement, if required
under the applicable Rules, within a period of four weeks
from the date of her reinstatement;
(viii) Upon receipt of such proposal, the competent
Education Authority shall consider and decide the same on
its own merits and in accordance with law, expeditiously and
preferably within a period of eight weeks thereafter;
(ix) Rule is made absolute in the aforesaid terms.
(x) There shall be no order as to costs.
(AMIT BORKAR, J.)
16
Legal Notes
Add a Note....