Neeta Sawant WP-2016 OF 2021

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.2106 OF 2021

Peoples Education Society and Anr. ...Petitioners

Versus.

Manisha Ramkrushna Rajput and Ors. ...Respondents

WITH

WRIT PETITION NO.2192 OF 2021

Peoples Education Society and Anr. ...Petitioners

Versus.

Balusha Santosh Bhasal and Ors. ...Respondents

Mr. Mandar Limaye for the Petitioners.

Mr. Swaraj Jadhav for Respondent No.1.

Ms. Sulbha Chipade, AGP for Respondent Nos.2 to 4-State in

WP/2106/2021.

Mr. P.V. Nelson Rajan, AGP for Respondent Nos.2 to 4-State in

WP/2192/2021.

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Neeta Sawant WP-2016 OF 2021

CORAM : SANDEEP V. MARNE, J.

Reserved On: 26 March 2026.

Pronounced On: 7 April 2026.

Judgment :

1) These Petitions are �led by the Management challenging the

judgments and orders dated 19 April 2021 passed by the Presiding Of�cer,

School Tribunal, Mumbai in Appeal Nos. 15 of 2019 and 16 of 2019. By the

impugned judgments and orders, the Tribunal has allowed the Appeals

and has set aside termination of the �rst Respondent-Teachers with

further directions to the Petitioners to reinstate them with full backwages

and continuity of service.

2) Brie�y stated, facts of the case are that Peoples’ Education

Society (Petitioner No.1) is a society registered under the Maharashtra

Public Trusts Act, 1950 and the Societies Registration Act, 1860, which

runs inter-alia Maharashtra High School No.2 and Junior College of

Commerce, which is recognised and aided by the State Government. At

the relevant time, six subjects were being taught in the college viz.,

English, Marathi, Book Keeping & Accountancy, Organisation of

Commerce and Secretarial Practice. The Petitioners had engaged

Assistant Teachers for each of the subjects. One of the Assistant Teachers

M. M. Gade, teaching Secretarial Practice superannuated on 1 July 2014.

Before his superannuation, Petitioner submitted application dated 6 June

2014 in compliance with Section 5(1) of the Maharashtra Employees of

Private Schools Act, 1981 (MEPS Act) for making available surplus

teacher and for grant of NOC to �ll up the post from a suitable candidate.

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Neeta Sawant WP-2016 OF 2021

The Petitioner submitted reminders dated 31 July 2014, 13 January 2015.

In response, a reply was received from Deputy Director, Education,

Mumbai, on 16 January 2015 requiring compliance of certain documents.

According to the Petitioners, the requisite documents were supplied but

neither surplus teacher was made available nor NOC was granted. In the

meantime, another Assistant Teacher- Mr. M.S. Javale teaching English

subject and Mr. S.B. Gaddamwar teaching Economic subject were to retire

on 31 May 2015 and 30 June 2015 respectively. Petitioner once again

requested on 1 April 2015 and 19 May 2015 for deputation of surplus

teachers and for grant of NOC. However, no reply was received from the

of�ce of Deputy Director, Education, Mumbai. It is the case of the

Petitioners that since three teachers had retired and the college was in

the need of teachers, the management decided to make appointment on

temporary basis till availability of surplus teachers or till grant of NOC.

Accordingly, an advertisement was published in newspapers on 3 July

2015 inviting applications inter-alia for �lling up the posts of lecturer in

Economic, Secretarial Practice and English subjects. According to the

Petitioners, the advertisement was issued only for �lling up posts on

temporary basis. That therefore reservation breakup was not declared.

3) It appears that the Respondent No.1 in both the Petitions

applied in pursuance of the advertisement. They were selected and

appointed for the academic year 2015-16. Manisha Ramkrushna Rajput

was appointed to teach Economic and Balusha Santosh Bhas al for

teaching English subject. According to the Petitioners, even after

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appointments of said teachers, correspondence was made for deputation

of surplus teachers or for grant of NOC.

4) It is the case of the Petitioners that both the Teachers were

appointed on temporary basis for various academic years and were

continued in service for four academic years of 2015-16, 2016-17, 2017-18

and 2018-19. The Teachers �led Writ Petition No.3603 of 2019

complaining about non-sending of proposal for their approval. It is the

case of the Petitioners that upon expiry of academic year 2018-19, the

services of both the Teachers came to an end by ef�ux of time. The

Teachers perceived the action of the management as termination of their

services and �led Appeal No.15 of 2019 (Manisha Rajput) and Appeal

No.16 of 2019 (Balusha S. Bhasal) challenging their discontinuation from

service. The Appeals were resisted by the Petitioner-Management by

�ling written statements. The Teachers �led rejoinder to which Sur-

rejoinder was �led by the Management. The learned Presiding Of�cer of

the School Tribunal proceeded to allow both the Appeals by judgment and

order dated 19 April 2021 setting aside ‘otherwise termination’ of both

the teachers and directing their reinstatement with full back wages and

continuity of services. Aggrieved by the orders passed by the School

Tribunal, the Petitioner-Management has �led the present Petitions.

5) Mr. Mandar Limaye, the learned counsel appearing for the

Petitioner-Management submits that the Tribunal has erred in allowing

the Appeals and directing reinstatement of the Respondent-Teachers in

ignorance of the position that they were engaged merely on temporary

basis awaiting allotment of surplus teachers or issuance of NOC for �lling

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up posts on regular basis. He submits that the Management never

intended to appoint the Respondents as permanent teachers. That no

appointment orders were issued to them and they were utilised merely on

temporary basis for four academic years. He relies on several resolutions

adopted by the Petitioner-Management for making temporary

engagements of the Respondents. That the Tribunal has failed to

appreciate the true purport of the said resolutions and has erroneously

arrived at a conclusion that the Respondents were appointed on

permanent basis. That the �ndings recorded by the School Tribunal that

the temporary appointment cannot be made against permanent vacancy

is in the teeth of Full Bench judgment of this Court in Ramkrishna

Chauhan Versus. Seth D.M. High School and others

1

. He submits that it

is permissible to make temporary appointments against permanent

vacancies.

6) Mr. Limaye further submits that the Tribunal has erred in

drawing adverse inference against the Petitioner for non-production of

appointment orders of the Respondents. That no appointment orders

were ever issued to the Respondents and that therefore there was no

occasion for producing the same. That the Tribunal erroneously ignored

resolutions adopted by the management by citing absence of pleadings.

He submits that temporary arrangements were required to be made by

engagement of the Respondents since of�ce of Deputy Director

Education, Mumbai was not responding to repeated requests made by the

Petitioner-Management. He submits that the Management did not �ll up

positions vacated by Respondents after their discontinuation by other

1 2013 3 ALL MR 1

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outside teachers. That one post for teaching Economic subject has been

�lled up by appointment of surplus teacher sent by the State Government.

That the other post for English subject has not been �lled up at all. He

further submits that there was reduction in the sanctioned strength of the

college from 6 posts to 3 posts. That all the three posts are occupied and

there is no vacancy left for occupation of the Respondents. He submits

that the Management had in fact adopted a resolution on 19 May 2021 to

apply to the authorities to close down the junior college from the

academic year 2022-2023. He therefore submits that the Management is

unable to reinstate the Respondents. He prays for setting aside of the

impugned orders.

7) Mr. Jadhav, the learned counsel appearing for the

Respondent No.1-Teachers opposes the Petitions. He submits that the

School Tribunal has rightly held the appointments of the Respondents as

regular appointments. That there is no dispute about the position that

their appointments are made against permanent posts vacated on account

of superannuation of regular teachers. That it is impermissible in law to

make temporary appointments against the permanent vacancy. That even

if temporary appointment is made against the permanent vacancy, the

same cannot be for inde�nite time. He submits that appointments have

been made after following of due process of selection meant for regular

appointments. That the advertisements did not specify that the

appointments were temporary nor the Respondents were ever informed

that the appointments were made on temporary basis.

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8) He further submits that the appointment orders were actually

issued to the Respondents, but the same were taken back under guise of

effecting corrections. That if appointments were temporary in nature,

management ought to have produced such appointment orders. That the

Management deliberately withheld the appointment orders and the

Tribunal has rightly drawn adverse inference against the Petitioners. Mr.

Jadhav further submits that the Petitioner's reliance on so-called

resolutions is misplaced since no pleadings were incorporated in the

written statement relating to such resolutions. That the so-called

resolutions were introduced only during the course of hearing of the

Appeals and reliance thereon is clearly afterthought. That in any case, the

so-called resolution cannot decide the nature of appointments made by

the Management. That the appointments were made on permanent basis

under a hope of receipt of NOC from the of�ce of Deputy Director,

Education. However, Management illegally terminated the Petitioners

after getting wind of the fact that the Respondents would demand

con�rmation in service as Assistant Teachers on completion of three

years’ service as Shikshan Sevak. That approval in respect of appointment

of the Respondent No.1 was deliberately not sought.

9) Mr. Jadhav further submits that School Management is

otherwise justi�ed in making appointments from the open market after

non-receipt of any response from the State Government relating to

surplus teachers. In support, he relies on judgments of this Court in The

Vidarbha Youth Welfare Society Versus. The Principal Vidarbha Youth

Welfare Society Polytechnic, Badnera

2

, Rajan Sahadeo Ratul Versus.

2 WP No. 4272 of 2016 decided on 15 November 2021

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Neeta Sawant WP-2016 OF 2021

State of Maharashtra and another

3

and Samidha Nimkar Versus.

Somaiya Vidyavihar

4

.

10) Mr. Jadhav further submits that even if temporary

appointment can be made against permanent vacancy, the same does not

restrict the jurisdiction of the School Tribunal from conducting an

enquiry as to whether the appointment should be treated as made on

probation. That in the present case, the Tribunal has correctly exercised

such jurisdiction by conducting enquiry into the nature of appointment of

the Respondents.

11) Mr. Jadhav further submits that the Teachers were paid

salaries during the vacation month of May every years belying the defence

of temporary appointment for each academic year. That if appointments

were made temporarily for each year, they ought to have produced

separate appointment and termination orders which the Management did

not produce. That the teachers were deputed to perform election duties,

which are never allotted to temporary teachers. They were also deputed to

perform various other tasks which only regular teachers are supposed to

perform. That therefore there is ample material to presume that the

appointments were regular for all practical purposes. He therefore

submits that no interference is warranted in the view taken by the School

Tribunal.

3 2023 6 MhLJ 234

4 Writ Petition No.3397 of 2018 decided on 13 January 2023

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Neeta Sawant WP-2016 OF 2021

12) Lastly, Mr. Jadhav invites attention of the Court to order

dated 17 March 2026 passed by the Division Bench of this Court in Writ

Petition No.3603 of 2019 by which the Management has been directed to

send proposal to the State Government for seeking approval to the

appointments of the Respondents. He therefore submits that the

Petitioner be directed to reinstate the Respondent No.1 in service so that

proposals of the Management can be considered and decided by the State

Government. He prays for dismissal of the Petitions.

13) I have considered the submissions canvassed by the learned

counsel appearing for the parties.

14) The main issue which arose for consideration before the

School Tribunal, and which again arises before this Court, is whether the

appointments of the Respondent-Teachers were permanent on probation

basis or whether they were merely temporary appointment made awaiting

allotment of surplus teachers or NOC from the Education Department.

Ordinarily, the nature of appointments can be gathered from the terms

and conditions of an appointment order. However, in the present case,

none of the parties have produced appointment orders of the Teachers.

Mr. Limaye has contended that no appointment orders were issued to the

Respondent-Teachers since their engagements were made purely on

temporary basis. On the other hand, it is the pleaded case of the

Petitioners that regular appointment orders were issued to them, but the

then Headmaster collected back the appointment letters on the pretext of

effecting corrections. Thus, neither Petitioner nor Respondent-Teachers

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have produced even photocopies of appointment letters of both the

Respondent-Teachers. Though appointment orders could not be

produced, there is no dispute to the position that Respondent-Teachers

discharged duties and responsibilities during the four Academic Years

2015-16 to 2018-19. In absence of production of appointment letters, the

School Tribunal has proceeded to hold that the appointments were made

on regular basis on probation. The Tribunal has drawn adverse inference

against the Petitioner- Management for non-production of appointment

orders by it. The relevant �ndings recorded by the Tribunal in this regard

are as under:

Apart, the appellant could not produce her appointment order as the

same were given to the then Head Master for correction and alleged to

have not been returned. The respondent management could have

produced the order of appointment on record. However, in place of the

order of appointment, the respondent management preferred at belated

to produce the minutes of meeting, appointing the appellant temporary

basis. on The respondent management has not pleaded nor leaded to

infer the reason for withholding or not producing the order of

appointment. Therefore this Tribunal draws as adverse inference that

the order of appointment is not suitable to the the stand of the

respondent management and factual presumption against the order of

the appointment of the appellant but the respondent management by its

own conduct discharged the burden of proof on the appellant that her

appointment was on probation.

15) As observed above, it is the case of the Petitioner-

Management that appointment letters were not issued to the Petitioners

whereas Respondent-Teachers contended that the issued appointment

letters were taken back from them. The pleadings in para-7 of the Appeal

are as under :

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7. The Appellant submits that though she was given an appointment

order by the Respondent Management thereby appointing the but the

Respondent Management through the then Headmaster asked t he

Appellant to return the said appointment letter since she was informed

that the said appointment letter needs some corrections. The Appellant

submits that she immediately handed over the said appointment letters

but the Appellant till date has not received the corrected appointment

order. Therefore, the Appellant crave leave to refer to and rely on the

said appointment letters as and when is produced before this Hon'ble

Court.

16) The Petitioner denied the averments in para-7 of the Appeal

and pleaded in the Written Statement by stating as under :

22. With respect to Paragraph 7, the Respondents deny all the

allegations as false and vague. It is pertinent to note here that Appellant

was appointed as a temporary teacher on consolidated salary with stop

gap arrangement and not as Shikshan Sevak as Claimed by the

Appellant.

17) Though the Respondent-Teachers craved leave to produce

appointment orders, the same were admittedly not produced and have

not been produced even before this Court. This Court �nds the story

pleaded in para-7 of the Appeal Memo to be unbelievable. Three teachers

were appointed by the Management for the subjects of Secretarial

Practice, Economics and English. It is unbelievable that none of the three

Teachers took even a photocopy of the alleged appointment orders issued

to them. It is not the case of the Respondent-Teachers that the

appointment orders were merely shown to them and immediately taken

back by the Headmaster. Para-7 of the Appeal is silent about the date of

issuance of the appointment orders and the date on which the same were

allegedly collected back by the Headmaster. On the other hand, the case

of the Petitioner-Management of non-issuance of appointment orders for

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Neeta Sawant WP-2016 OF 2021

temporary engagements on academic year basis appears to be more

believable as such case draws support from the resolutions adopted by the

Management every year and which are discussed in greater details in the

latter part of the judgment. In the present case, the Management did not

send proposal to the Education Department, which is yet another

indicator for absence of intent to make regular appointments on

probation.

18) In my view, the School Tribunal has erred in drawing an

adverse inference against the Petitioner-Management on account of non-

production of letters of appointment of Respondent-Teachers. It was the

case of the Respondent-Teachers that they are appointed on regular basis

and therefore the burden was on their shoulders to prove the same. The

Tribunal erred in believing the story of the Respondent-Teachers that the

Headmaster collected back the alleged appointment letters on the pretext

of correction in absence of any documentary evidence in that regard. If

the appointment orders were indeed collected by the Headmaster, at least

one out of the 3 teachers ought to have protested or contemporaneously

written a letter complaining about such action of the Headmaster.

Respondent-teachers were in service for 4 years and it is unbelievable

that for 4 long years, they maintained silence in respect of the alleged

action of the Headmaster in collecting back the appointment letters. More

importantly, the Respondent-Teachers �led Writ Petition in this Court in

the year 2019 and at least at that stage they ought to have raised a protest

in respect of the alleged action of the Headmaster in collecting back the

alleged appointment letters. The �nding recorded by the School Tribunal

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Neeta Sawant WP-2016 OF 2021

that the appointments were regular on the basis of adverse inference

against the Petitioner-Management, is thus a mere surmise.

19) Another reason, which in fact is the main reason for holding

the appointments to be regular and permanent by the School Tribunal, is

the fact that the same were made against permanent vacancies. There is

no dispute to the position that the vacancies against which appointments

were made were permanent in nature. There is also no dispute to the

position that the Petitioner-Management did not make appointments of

Respondents as per its whims and caprices and issued advertisement for

making those appointments. However, since selection process was

followed by issuance of advertisement and appointments are made on

permanent basis, the School Tribunal has proceeded to hold that the

appointments have to be necessarily permanent by rejecting Petitioner’s

plea that the same were temporary. The relevant �ndings recorded by the

School Tribunal in this regard are as under:

15.4 In the present case, the respondent management in appointing the

vacancy on superannuation followed the procedure of ascertaining the

surplus on the list of the Dept. The advertisement was published to �ll

up the vacancy. It is not the case of the respondent management that

the appellant was terminated for want of satisfactory work or behavior.

But, it appears that the plea has been raised that the vacancy was

temporary as the Dept. did not reply to providing surplus nor responded

to No Objection for recruitment. The appointment of the appellant were

purely temporary for �xed period. The Non permanent category of

employee is divided as temporary or probationer. the A temporary

employee is one who is appointed on the temporary vacancy Tor a �xed

period. On the other hand, probationer is appointed against permanent

vacancy. Therefore, the ultimate plea of the respondent management is

that for the want of no objection of the Dept of surplus, there can not be

the appointment as a probationer. Further, it is necessary to consider

the legal consequence of appointment without the ascertaining for

surplus or No Objection of the Dept. The Dept under the circumstances,

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Neeta Sawant WP-2016 OF 2021

may refuse the approval. It is the settled position of the law that want of

approval is not the condition precedent to validate the appointment.

This tribunal holds that the appointment against the permanent vacancy

will not be an appointment on temporary vacancy" for want of No

Objection for recruitment or response of the Dept for ascertaining the

surplus. What is a temporary vacancy is not de�ned under the MEPS Act

or Rules. But, it is certain from Rule 10 of the MEPS Rules that a

temporary employee is appointed on a temporary vacancy for a �xed

time. Further, Schedule D providing for the no order of temporary

appointment worded as, "2. Your appointment is purely temporary for a

�xed period of...months/years from... to.... in the leave/deputation

vacancy. After expiry of the above period, your services shall stand

terminated without notice." Therefore, the contemplated temporary

appointment may be in leave/deputation vacancy. In the present case,

the appointment is for the vacancy arose out of superannuation and not

leave/deputation.

Xxx

16. The appointment of the appellant was against the clear and

permanent vacancy. The excuse of appointing the appellant for 3 years

as a temporary employee that the Dept did not give NOC for recruitment

is of no help. The Education Dept did not step ahead to contest the

appeal in any way. The appellant must be appointed as a probationer as

the appointment was against the clear and permanent vacancy. Further

more, the respondent management did not produce the releva nt

appointment order or record. Therefore, the pleading of the respondent

management that the appointment was temporary for temporary post

for want of NOC or resolution that the appointment of the appellant was

temporary does not hold good. The admitted position is that the

appellant served in the respondent junior college for 2015-218 as

claimed for. Once it is held that the appointment was against the clear

and permanent vacancy for probation, the service of 3 years leads the

deemed permanency as provided under Section 5(2A) of the MEPS Act.

The appellant claimed her clean service without any occasion for notice

or memo. The respondent management barely refuted it but has not

produced any notice or memo on substantiate that the record ACR or to

services of the appellant were not blotless. Therefore, the appellant

appears to be entitled to claim the deemed permanency.

20) Perusal of the above �ndings would indicate that the

Tribunal has contradicted itself in holding that the appointments were

not temporary (and the same were permanent) and that the Respondent-

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teachers are entitled to claim ‘deemed permanency’. The question of

operation of deeming �ction of permanency would come into play only

when the appointment is made ostensibly on temporary basis. Therefore,

the fact that the Tribunal has upheld the claim of Respondent-Teachers

for ‘deemed permanency’ necessarily means that they were appointed on

temporary basis. Treatment of appointment since inception as permanent

is a concept different and distinct from the concept of treating a

temporary appointment as permanent by invoking the doctrine of

‘deemed permanency’. If somebody is already permanent, there is no

question of invocation of doctrine of deemed permanency. If an employee

is issued temporary appointment order but satis�es the Court that the

appointment was permanent for all practical purposes, the Court can

issue a declaration that the temporary appointment is deemed to be

permanent. However, such �nding proceeds on an assumption that the

appointment was initially made temporary. In the present case, the

Tribunal has arrived at a �nding that the appointments were made on

permanent basis and on probation. Therefore, the contradictory �nding of

deemed permanency cannot be countenanced.

21) Leaving aside the issue of internal contradiction in the

�ndings relating to permanency in the impugned judgment and order of

the Tribunal, this Court is otherwise not able to uphold the �ndings

recorded by the Tribunal that the appointments were permanent since

inception. Firstly, the Tribunal has erred egregiously in holding that since

appointments are made against permanent vacancies, the same will have

to be necessarily permanent and on probation. This �nding of the

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Neeta Sawant WP-2016 OF 2021

Tribunal is in the teeth of ratio of judgment of Full Bench of this Court in

Ramkrishna Chauhan (supra) in which it is held as under :-

18. A prior, we have no hesitation in taking the view that neither Section

5(1) nor 5(2) of the 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. Further, 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

two years. There is no such legal �ction unlike in the case of a person

appointed “on probation” for a period of two years, is deemed to  have

been con�rmed, upon completion of that period. In other words,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.

22) The Tribunal has however distinguished the Full Bench

judgment in Ramkrishna Chauhan by holding that since Management

withheld the appointment orders, the judgment is of no avail to the

Petitioner-Management. However, the Tribunal did not bother to discuss

the ratio of the Full Bench judgment in Ramkrishna Chauhan and has

recorded �ndings contrary to the ratio of the said judgment that

temporary appointments can be made against permanent vacancies. The

Full Bench judgment in Ramkrishna Chauhan recognizes right of the

Management to make temporary appointments against perma nent

vacancies. Of course, the Full Bench has imposed some caveats on the

Management for making temporary appointments against permanent

posts which are (i) impermissibility to reject candidates in selection

process on the ground of suitability and then appointing some other

person on contractual/temporary basis for academic sessions on year to

year basis, (ii) recording of subjective satisfaction for taking conscious

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Neeta Sawant WP-2016 OF 2021

decision to appoint duly quali�ed persons on temporary basis for limited

period against permanent vacancy and (iii) legal obligation to initiate

process for appointing duly quali�ed suitable person against permanent

vacancy on probation at the earliest.

23) Reverting to the issue of nature of appointment of

Respondent-Teachers, it is seen that the Management placed before the

Tribunal several resolutions in support of its plea that the decision to

engage temporary teachers was taken awaiting surplus teachers/NOCs

from the of�ce of the Deputy Director. There is no dispute to the position

that before appointments of the Petitioners, several letters were issued by

the Petitioner-Management to the of�ce of the Deputy Director of

Education, Mumbai requesting for sending surplus teachers or for grant of

NOCs to �ll up the posts on its own. It is also an admitted position that

the of�ce of the Deputy Director neither sent surplus teachers nor

granted NOC to the Petitioner-Management. The Petitioner-Management

was also scrupulous in sending letters every time a new vacancy arose

with retirement of teachers. The case thus does not involve creation of a

false picture only for the purpose of making appointments by

Management on its own by bypassing the requirement under Section 5(1)

of the MEPS Act. Since the of�ce of the Deputy Director of Education

failed to send surplus teachers or grant NOC, the Management �nally

decided to engage temporary teachers for the Academic Year 2015-16.

The Resolution adopted in the meeting held on 25 July 2015 is as under :

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PAGE NO. 17 OF 27

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25) Again fresh Resolution was adopted for the Academic Year

2017-18 as under :

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(K r2Jt ra NC2F2E6l 8#9a23It2 O%r4ुaA72 Net PF0i2 4a-2 t2 #2l%t 0 rE6rJt%

:g/O/"l M%iK/ &B%.

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: /lS/PE ,o0B/ c(ुCn .O+(/g% POK% &B%i. पण पु&#153618765;हा &#154470719;नयुWA an+t2P6NP 't2372

interview M%+(/i (/:/ !S% POK%, t2G2GE )2l6l 1n2N 03rE an+t2E &l2.

PO/::-

i6 #2l%t 0 rE6 0C2 &9 n396 !02 1n2N 03rE anE &i% aA, उ&#10007429843226; मा&#153553229;य&#154470719;मक

NC2F2E6l 8#9a23It2 N 96O ,-.N n396 rFl2)E M%QO PF0i2 ORt2O% 't2376 Oयु&#9985955006756;ी

.O+(/i (/:E.

_____________________________________________________________________________

PAGE NO. 18 OF 27

7 April 2026

Neeta Sawant WP-2016 OF 2021

ही &#154470719;नयुWA t2 Ne2p0216 E2'PFn't2 ?N<P276 &84 8#94 (P0372la237% &-%# O2 inकत

sh/4,S/S !E>c?" O/Bूc .O+(/i (/:E !S% POK%. 

26) Lastly, in the Meeting held on 30 April 2019, Petitioner-

Management decided to discontinue the services of the Respondents by

adopting following Resolution:

: ( . ,: &#153618765;यू aTl%9 8#9a23It2 PFO6l Ne2pIt2 O%r4ूकीबाबत-

&#153618765;यूकॉलेज &#154536255;श&#9985955006775;कांची खालील&#10076149319984;माणे &#154536255;श&#9985955006775;कांची

१. AEhiE h c / O/ ,6i(Economics)

२. &#10127688927536;ीमती बाळकृ&#154601805;ण भासळ(English)

३. &#10127688927536;ी. :./S mO.)%(B.K.)

४. A6rE6 n%)2 G2FN%(S.P.) t2 8#9a2376 0%N2 E2'PFn't2 ?N<P276 !02t2rF*% -. ३०

4 .l P20FO )3E)E an+t2E &l6.

&84 't23It2 PFO6l Ne2pIt2 O%r4ू./ (/ &i/ #/Sc/I(/ , :S ,3WlKI(/ h/J(h/i6c

i342n &i%E E0%7 t2G2GE 72 O4pt RtN?"2Pa r3)*2It2 0C%E M%+t2E t%ईल असे

POK%.

27) The above Resolutions were placed before the School

Tribunal. However, it has proceeded by recording an illogical &#6684777;nding that

‘however in the place of order of appointment, Respondent-Management

preferred at belated to produce the Minutes of Meeting appointing the

Appellant on temporary basis. The Respondent-Management has not pleaded

or leaded to infer the reason for withholding or not producing the order of

appointment’. One more place where the Resolutions &#6684777;nd mention by the

Tribunal is in para-12 in which it is held by the Tribunal as under :

12.The appellant claimed that she was issued the order of appointment.

However, in the pretext of correction it was taken back by the then

principal. Rule 9 (5) of the MEPS Rules requires the order of

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PAGE NO. 19 OF 27

7 April 2026

Neeta Sawant WP-2016 OF 2021

appointment as prescribed under Schedule D There is no discrimination

as order of appointment in the prescribed form as a temporary employee

or probationer. The respondent management disputed contending that

the appellant was given the appointment as a temporary employee for

&#6684777;xed period of 11 months. The appellant could not produce on record

her order of appointment for the said reason of her parting with it for its

correction. The appellant also claimed that she was not given any

correct order of appointment. The respondent management denied that

it was so happened. The respondent management contended that the

appellant did not dispute her alleged withholding of order of

appointment at no point of time before the appeal. It is apt to add here

that the respondent management also has not produced on record any

order of the appointment of the appellant. The respondent

management brought on record the resolutions of the management

that the appellant were appointed on temporary basis. The

appellant disputed such last minute production of document to be

after thought. There is advertisement of the recruitment placed on

record before this tribunal. respondent management also contested

as that the appellant did not produce any document to show that

she applied for the post and she was appointed for Economics. The

said resolutions on record per se showing that the appellant was

appointed for the subject of economics though allegedly on

temporary basis.

(emphasis added)

28) These are the only two places where the Tribunal took note

of the Resolutions produced by the Petitioner-Management. The context

in which cognizance of Resolutions is taken by the Management is

entirely wrong. The Resolutions were produced to show as to why the

Management was required to make temporary appointments. Instead of

considering the Resolutions in the correct context, the School Tribunal

has used them for inferring that the appointments were made in respect

of particular subjects and that production of Resolutions did not absolve

the Petitioner-Management of responsibility of producing the

appointment orders. Thus, the manner in which the entire inquiry is

conducted by the Tribunal is faulty.

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PAGE NO. 20 OF 27

7 April 2026

Neeta Sawant WP-2016 OF 2021

29) Considering the manner in which the appointments of

Respondent-Teachers were made, this Court is satis&#6684777;ed that the

Petitioner-Management made genuine efforts for &#6684777;lling up vacant posts

arising out of superannuation through surplus teachers available with the

of&#6684777;ce of Deputy Director. This Court has repeatedly castigated the

Education Department of the State for not sending surplus teachers

despite receipt of requisitions from School Management. This is a classic

case where the of&#6684777;ce of the Dy. Director did not send even a single

surplus teacher to the Petitioner-Management despite writing several

letters. This Court does not appreciate this course of action of the of&#6684777;ce

of Dy. Director since the State Government is required to bear the burden

of paying salaries to the surplus teachers without extracting any work

from them. When requisition was sent for deputation of 3 surplus

teachers, the of&#6684777;ce of the Dy. Director ought to have acted with the

necessary alacrity and saved the &#6684777;nancial burden of paying salaries to 3

surplus teachers from whom work could have been extracted by posting

them in Petitioner-College. Be that as it may, the action of the of&#6684777;ce of

the Dy. Director is not the subject matter of challenge in the present

petition. The limited remit of inquiry is whether the appointments of

Respondent-teachers were temporary or permanent. From the factum of

Petitioner-Management sending repeated letters to the of&#6684777;ce of the Dy.

Director for surplus teachers/NOC and several Resolutions passed by the

Management, it is clear that the appointments of Respondent-Teachers

were made as a stop-gap arrangement till receipt of surplus teachers or

NOC from the of&#6684777;ce of the Dy. Director.

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PAGE NO. 21 OF 27

7 April 2026

Neeta Sawant WP-2016 OF 2021

30) Ordinarily, this Court is &#6684780;ooded with petitions &#6684777;led by the

Management and teachers where the Management makes pe rmanent

appointment after non-receipt of response from the Education

Department for deputation of surplus teachers. When proposals are sent

in respect of the such permanent appointments, the same are rejected by

the Education Of&#6684777;cer on the ground of non-procurement of prior NOC.

This Court has time and again held that the School Management is not

supposed to wait endlessly for issuance of NOC and where requisition for

surplus teachers/NOC is not responded within reasonable time, the

Management is entitled to make a permanent appointments. In fact, the

judgments of this Court relied upon by Mr. Jadhav in Vidarbha Youth

Welfare Society and Samidha Nimkar are illustrations of such petitions

&#6684777;led before this Court. However, the present case involves a distinct

situation. The case does not involve making of a permanent appointment

by Management after awaiting response from the Education Department

and rejection of proposal by the Education Of&#6684777;cer. The case, on the other

hand, involves making of a temporary appointments by the Management

who has prudently waited for deployment of surplus teachers by the

Education Department. Merely because an engagement is ma de to

temporarily man a permanent vacancy awaiting response to requisition of

surplus teacher it cannot be inferred that in every case such appointment

has to be permanent. In a given case, the Management can make a

permanent appointment after non-receipt of response to requisition of

surplus teacher but it is not necessary that in every case the Management

is bound to make only permanent appointment when response is awaited

from Education Department on requisition of surplus teachers. On the

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PAGE NO. 22 OF 27

7 April 2026

Neeta Sawant WP-2016 OF 2021

other hand, it is more prudent to make a temporary appointment after

sending requisition for surplus teachers. It happens that the Education

Department takes some time to deploy subject speci&#6684777;c surplus teachers.

However, this does not mean that the Management can merely send

requisition and immediately proceed to make permanent appointment

against available vacancy.

31) In the present case, the contemporaneous documentary

evidence clearly proves that the appointments of Respondent-Teachers

were made on temporary basis awaiting response of Education

Department on requisition for surplus teachers. The Tribunal has

egregiously erred in assuming that because advertisement was issued and

because appointments were made against permanent posts, the same

were necessarily permanent.

32) As observed above, reliance of Petitioners on judgment of

this Court in Vidarbha Youth Welfare Society, Rajan Sahadeo Ratul and

Samidha Nimkar does not assist the case of the Respondent-teachers. In

Vidarbha Youth Welfare Society this Court has dealt with a case where

permanent appointment was made by the Management after awaiting

response from Education Department. Similar was the issue in Rajan

Sahadeo Ratul where proposal for approval to the appointment of

permanent teacher was rejected on the ground of non-securing of NOC.

This Court held that the Management had resorted to perma nent

appointment of the Petitioner therein only after failure to nominate

surplus teacher by the Education Department. In Samidha Nimkar also,

proposal for seeking NOC was sent by the Management on 22 June 2015

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PAGE NO. 23 OF 27

7 April 2026

Neeta Sawant WP-2016 OF 2021

and appointment of regular teacher was made on 21 January 2016 due to

non-receipt of response to the requisition for surplus teachers/NOC. The

present case does not involve issue of rejection of proposal for failure to

seek NOC. On the other hand, the case involves determination of nature

of appointment of the Respondent-teachers. This Court is convinced that

the appointments were made on temporary basis and Management had no

intention of making permanent appointments. The Tribunal has erred in

drawing the presumption of permanent appointments merely because

advertisement was issued and merely because permanent vacancies

existed. Reliance by Mr. Jadhav in Abdul Ra&#6684777;que Abdul Hamid Versus.

Yavatmal Islamia Anglo Urdu Education Society and others

5

also does

not cut any ice. This Court held in para-21 of the judgment as under:

21. The law laid down by the Apex Court in the cases of Hindustan

Education Society and Bharatiya Gramin Punarrachana Sanstha, cited

supra, cannot be disputed. However, it was not a case before the Apex

Court as regards treating the appointment as on probation, though the

order stipulates that it is on temporary basis or for a &#6684777;xed period. The

question of enforcement of obligation under sub-section (2) of section 5

in a case where there was compliance of subsection (1) of section 5 of

the MEPS Act and no further explanation was offered by the

Management to make an appointment on temporary basis, was not

involved. The question of jurisdiction of the School Tribunal under

section 9 of the MEPS Act to consider and decide the question as regards

treating the appointment made on temporary basis or for a &#6684777;xed period

in a permanent vacancy, as one on probation in the given facts and

circumstances of the case, was also not involved. Hence, both the said

decisions cannot be considered to be an authority for the proposition

involved in the present case. The power of the Management to appoint a

person on temporary basis in a permanent vacancy, cannot be disputed,

but the power of the School Tribunal under section 9 of the MEPS Act to

&#6684777;nd out as to whether such appointment should be treated as one on

probation, in the facts and circumstances of the case, cannot be

questioned.

5 2013 3 Mh. L.J. 99

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PAGE NO. 24 OF 27

7 April 2026

Neeta Sawant WP-2016 OF 2021

33) This Court thus recognized the right of the Management to

make temporary appointments against permanent posts. However, this

Court has recognised the jurisdiction of the School Tribunal to conduct

inquiry as to whether such temporary appointment can be treated as the

one on probation in the facts and circumstances of each case. There can

be no dispute about this proposition. If Management makes this

permanent appointment but deliberately treats it as temporary, the

School Tribunal is not divested of jurisdiction to conduct an inquiry into

the nature of appointment and arriving at a &#6684777;nding that the same was

actually made on probation. In the present case, however there is no

material to infer that the appointments were made permanently on

probation. On the other hand, there is ample material to infer that the

appointments were on temporary basis.

34) Considering the overall conspectus of the case, this Court is

of the view that the School Tribunal has erred in allowing the Appeals

preferred by the Respondent-teachers. The School Management has

acted with due prudence in the present case and made temporary

engagements with a view to ensure that students do not suffer on account

of its inability to make permanent appointments due to lack of response

from Education Department. Instead of appreciating the conduct of the

Petitioner-Management, the School Tribunal has erroneously held that

the appointments of Respondent-Teachers were made on permanent

basis. The nature of inquiry conducted by the Tribunal is faulty. The

conclusions arrived by it are perverse and therefore the order of the

Tribunal is indefensible.

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PAGE NO. 25 OF 27

7 April 2026

Neeta Sawant WP-2016 OF 2021

35) This Court would have been justi&#6684777;ed in simply setting aside

the impugned judgments and orders of the School Tribunal. However,

during the course of hearing of the petitions, a query was put to Mr.

Limaye as to whether the Management is willing to compensate the

Respondents. Considering the peculiar facts and circumstances of the

present case and in usual fairness, Mr. Limaye, on instructions, has made

a statement that the Management is willing to offer compensation of

Rs.5,00,000/- to each of the Respondent-teachers. This offer is recorded

by this Court while reserving the judgment vide order dated 26 March

2026. In my view, while allowing the petitions and while setting aside the

impugned judgments and orders of the Tribunal, it would be appropriate

to direct the Petitioner-Management to pay to the Respondent-teachers,

lump-sum compensation of Rs.5,00,000/- for loss of job by them. It is

however clari&#6684777;ed that this course of action is taken in the light of unique

facts and circumstances of the present case and also by taking into

consideration the fair offer made by the Petitioner-Management. The

same shall not be treated as a precedent in any other case.

36) Resultantly, the petitions succeed and I proceed to pass the

following order :

(i) Judgments and orders dated 19 April 2021 passed by the

Presiding Of&#6684777;cer, School Tribunal, Mumbai in Appeal Nos. 15

of 2019 and 16 of 2019 are set aside.

(ii) Petitioner-Management shall pay to Respondent No.1 in both

the petitions, lump-sum compensation of Rs.5,00,000/- each

as full and &#6684777;nal settlement in respect of the services rendered

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PAGE NO. 26 OF 27

7 April 2026

Neeta Sawant WP-2016 OF 2021

by them during Academic Years 2015-16 to 2018-19. Beyond

the lump-sum compensation so paid, Respondent No.1 in

both the petitions shall not be entitled to any other bene&#6684777;ts

from the Petitioner-Management or from the State

Government.

37) With the above directions, the petitions are partly allowed.

Rule is made partly absolute. There shall be no order as to costs.

[SANDEEP V. MARNE, J.]

_____________________________________________________________________________

PAGE NO. 27 OF 27

7 April 2026

NEETA

SHAILESH

SAWANT

Digitally

signed by

NEETA

SHAILESH

SAWANT

Date:

2026.04.07

20:14:45

+0530