901-WP-12680-2016_.docx

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 12680 OF 2016

Taraka Chandrakant More

Age 35 Yrs, Occ : Nil,

R/o. Khamkheda, Tal, Deola

Dist. Nashik. ...Petitioner

VERSUS

1. The State of Maharashtra

Thr. Government Pleader’s Office,

High Court, Appellate Side, Mumbai.

2. The Hon’ble Secretary of

the Department of School

Education and Sports, Mantralaya

Mumbai 400 032.

3. The Secretary,

Samaj Sudhar Samiti,

Mhasarul, Dist. Nashik.

4. Project Officer,

Ekatmik Adivasi, Vikas Prakalp

Officer, Tal. Kalwan, Dist. Nashik.

5. Head Master,

Prathamik Ashram Shala,

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Navi Bej, Tal. Kalwan,

Dist Nashik.

6. Addl. Tribal Development Commissionerate,

Nashik, Adiwasi Vikas Bhavan,

Ground floor, Old Agra Road,

Nashik 422 002.

7. The Presiding Officer,

School Tribunal, Nashik.

8. The Education Officer,

Zilla Parishad, Nashik. ...Respondents.

Mr. Eknath Dhokale a/w. Ms. Darshana Kamble for the

petitioner.

Mr. Anilkumar Patil a/w. Mr. Digvijay Patil, Mr. Laxmikant Patil

for respondent nos. 3 and 5.

Mr. B. B. Dahiphale, AGP for the respondent-State.

CORAM : GAURI GODSE, J.

RESERVED ON: 30

th

APRIL 2026

PRONOUNCED ON: 6

th

AUGUST 2026

JUDGMENT:

BASIC FACTS:

1. The petitioner was appointed as Shikshan Sevak in the

Ashram School run by respondent no. 3. Respondent no. 5 is

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the Headmaster of the Ashram School. By the order

impugned in this writ petition, the petitioner’s appeal under

Section 9 of the Maharashtra Employees of Private Schools

(Conditions of Service) Regulation Act, 1977 (“MEPS Act”)

challenging the oral termination has been dismissed.

2. Respondent no.3 had published a notice in the

newspaper for five posts of Shikshan Sevak to be appointed

in the Ashram School run by respondent no.3. Pursuant to

the notice, the petitioner had applied for the post, and she

was appointed as Shikshan Sevak in the Primary Ashram

School run by respondent no.3. The appointment order is

dated 15

th

December 2004.

3. Respondent no.4 is the project officer who had

approved the petitioner’s appointment on 28

th

February 2006.

The petitioner completed her three-year service as Shikshan

Sevak on 16

th

July 2007. Hence, according to the petitioner,

on completion of three years she became a permanent

teacher with effect from 16

th

July 2007. Thereafter, the

respondent management issued a termination letter dated

23

rd

July 2007 terminating the petitioner’s service with effect

from 16

th

July 2007. However, the petitioner continued her

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service, and she was assured that an order of confirmation

would be issued. According to the petitioner, while in

continued service, she had undertaken the departmental

training programs organised by the respondent no. 4, Project

Officer. However, after 16

th

June 2008, the petitioner was not

allowed to join her duties in the school. Hence, she filed the

appeal under Section 9 of the MEPS Act to challenge her

oral termination.

4. According to the management, the petitioner’s

appointment was only for one academic year. However, she

had manipulated the date in the appointment order.

According to the management, due to non-performance and

dereliction in her duties, the petitioner was issued various

memos, and therefore, the decision was taken to discontinue

her service. Hence, it was contended by the management

that there was no oral termination. Since the petitioner’s

services were terminated with effect from the date of expiry

of the period of her appointment, the petitioner was not

entitled to claim any permanency.

5. The learned tribunal held that the petitioner was not

appointed as Shikshan Sevak on a vacant post after

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following the process of law. Hence, the petitioner’s case of

oral illegal termination is disbelieved. The tribunal has

therefore dismissed the appeal.

SUBMISSIONS ON BEHALF OF THE PETITIONER:

6. Learned counsel for the petitioner submitted that

though the appointment order referred to only one academic

year, the petitioner was intimated that her appointment was

for three years. The petitioner’s appointment was accordingly

approved by respondent no.3 for the period from 17

th

July

2004 to 16

th

July 2007. There is no dispute that the petitioner

continued in service for the period of three years. It was only

in June 2008 that she was not allowed to join her duties. The

termination letter dated 23

rd

July 2007 issued by the

management itself shows that the petitioner’s appointment

was not for the period of one year. Since after the termination

letter dated 23

rd

July 2007, the petitioner was continued in

the service, there was no reason for the petitioner to

challenge the termination letter dated 23

rd

July 2007. Thus,

only due to oral termination in June 2008, the petitioner was

constrained to file the appeal before the school tribunal.

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7. Learned counsel for the petitioner, therefore, submitted

that when the petitioner was permitted to continue beyond

the period of one year as stated in the original appointment

order, it is clear that her appointment was for three years in

terms of Government Circular for appointment of Shikshan

Sevak for the period of three years. Since the petitioner

continued beyond the period of three years, she would be

entitled to deemed permanency. Learned counsel for the

petitioner submits that the tribunal has completely ignored

the substantial evidence produced on record to show that the

petitioner had undertaken training programs during the

period of three years, which supports the petitioner’s

contention that her appointment was for three years and she

successfully completed the entire probation period of three

years as required for deemed permanency under Section 5

of the MEPS Act.

8. To support his submissions, learned counsel for the

petitioner relied upon the decision of this court in Assaram

Raibhah Dhaga Vs. Executive Engineer and Ors

1

, Ram

Avadh Mahel Pal Vs. Shivdutta Educational Trust and

Ors

2

. Learned counsel for the petitioner, therefore, submits

1 1988 SCC OnLine Bom 336

2 2007 (6) Mh.L.J.

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that the illegal termination letter issued with retrospective

date would not disentitle the petitioner to claim permanency

on due completion of the period of three years. He submits

that it is a well-established legal principle that once the

petitioner continued in service for the entire probation period

of three years, the management would not be justified in

terminating the service without following the due procedure

under the MEPS Act.

9. He submits that the Full Bench of this Court in Ram

Avadh Mahel Pal has decided the issue of completion of the

probation period of three years by the teachers appointed as

Shikshan Sevak. It is held that on completion of a three-year

probation, the Shikshan Sevak shall be deemed to have

been appointed and confirmed as a teacher. Hence, in view

of the well-established legal principles, the management is

not entitled to terminate the petitioner’s services as she has

attained permanency on satisfactory completion of the

probation period of three years.

SUBMISSIONS ON BEHALF OF RESPONDENT NOS. 3

AND 5 (MANAGEMENT):

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10. Learned counsel for the management has submitted a

compilation of the documents containing the documentary

evidence produced before the tribunal. He submitted that all

the documentary evidence relied upon by the petitioner

before this court to support her contention that she

completed the period of three years was not produced before

the tribunal. He submitted that the termination letter dated

23

rd

July 2007 was never challenged by the respondent.

Hence, the appeal filed by the petitioner to challenge the oral

termination was itself not maintainable. The petitioner was

never continued in service after 16

th

July 2007. Hence, there

was no question of any permanency on the ground of

satisfactory completion of three years.

11. Learned counsel for the respondent submitted that the

original appointment order was only for one academic year.

However, the petitioner had scored out the period and had

shown the appointment for three academic years. He,

therefore, submits that in view of the appointment order

dated 15

th

December 2004, the petitioner’s appointment was

for the period from 17

th

July 2004 to 30

th

April 2005. Though

the petitioner continued in service, thereafter her service was

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terminated on 23

rd

July 2007 with effect from 16

th

July 2007.

Hence, before completion of the probation period, the

petitioner was terminated on the ground of her unsatisfactory

service. The termination letter refers to various memos

issued to the petitioner, which she never challenged; hence,

the tribunal has rightly accepted the contentions of the

management that the petitioner did not satisfactorily

complete the probation period and, therefore, her services

were rightly terminated before completion of three years.

12. Learned counsel for the management submitted that

the petitioner’s services were already terminated on 23

rd

July

2007 and the petitioner never continued thereafter in her

service. Therefore, there was no question of any oral

termination that was challenged by the petitioner before the

school tribunal. Hence, the impugned order is rightly passed

based on the material before the tribunal. The documents

relied upon in the present petition to show that she had

continued in service and had undertaken training programs

cannot be considered for the first time in this writ petition.

13. To support his submissions that once action has been

taken against a probationer before the completion of the

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probation period, no permanency can be claimed by the

teacher, he relied upon the decision of this court in Gramin

Yuvak Vikas Shikshan Mandal Kinhi Naik and Anr. Vs.

Shivnarayan Datta Raut and Anr

3

. Learned counsel for the

management submitted that the well-reasoned order of the

tribunal refusing to grant relief to the petitioner need not be

interfered with in the writ jurisdiction under Article 227 of the

Constitution of India.

ANALYSIS AND CONCLUSIONS:

14. On perusal of the termination letter dated 23

rd

July

2007, various memos were noticed by this Court which are

referred to in the termination letter. The termination letter

made serious allegations against the petitioner that during

her tenure, a girl student in the Ashram School Hostel

expired. Hence, she was issued a memo. Considering the

serious allegation regarding blaming the petitioner for the

death of a female student, this court called upon the learned

AGP to make his submission on the guidelines for

appointment of Shikshan Sevak in the resident schools.

Learned AGP was called upon to file an affidavit to point out

3 AIR Online 2023 BOM 841

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the guidelines, if any, governing the appointment of Shikshan

Sevak in a resident school (Ashram School).

15. In the present case, the petitioner’s appointment order

does not refer to her appointment in a resident school. The

duty list mentioned in the appointment order does not refer to

any such duty for remaining/residing in the school premises

as a resident teacher. Hence, the necessary affidavit was

called for from respondent nos. 1 and 2. Accordingly, learned

AGP tendered an affidavit on 29

th

April 2026. Learned AGP

has placed on record a government circular dated 8

th

September 2005 by which necessary guidelines are issued

for Shikshan Sevaks and the staff in Ashram Schools. It is

stated in the affidavit that since the tribal schools are mostly

in remote areas, residential facilities for students and

teachers are provided. The copy of the government circular

dated 24

th

August 2021 is also annexed to the affidavit.

According to the learned AGP, as per the said circular, it has

been made mandatory for the teaching and non-teaching

staff to stay in the school premises in a residential school.

Learned AGP, thus, submitted that in view of the government

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circular, it is mandatory for teaching and non-teaching staff to

reside within the premises of the Ashram School.

16. I have carefully perused the circulars produced on

record by the learned AGP. None of the circulars refers to

any mandatory requirement that all Shikshan Sevaks

appointed in Ashram Schools would be resident teachers. So

far as the petitioner is concerned, even her appointment

letter does not refer to any such condition that she was

appointed on any such condition. The Circular dated 24

th

August 2021 produced by the learned AGP provides that it

will be mandatory for the Male and Female Superintendent to

reside in the Ashram School at night and in their absence

another teacher be given their duty. Even the Ashram Shala

Code produced by the learned AGP does not provide for any

mandatory requirement for each teacher to remain in the

Ashram School for 24 hours.

17. Although there is a controversy on the period of service

mentioned in the appointment letter, there is no dispute that

the petitioner continued for three academic years.

Admittedly, the petitioner joined her services as Shikshan

Sevak with effect from 17

th

July 2004. As per the termination

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letter dated 23

rd

July 2007, it is clear that the petitioner has

completed the period of three years. The management had

not issued any letter of termination before completion of the

period of three years. The termination letter dated 23

rd

July

2007 records the termination of the petitioner’s services with

backdated effect from 16

th

July 2007. Thus, by issuing the

termination letter, the petitioner’s services are terminated

with a backdated effect. The management has raised the

dispute on the petitioner’s contention that she continued for

the period of one year despite the letter dated 23

rd

July 2007.

The documents produced regarding the certificates issued to

the petitioner indicate that she continued in service for the

academic year 2007-08. Two of the certificates produced in

this writ petition were admittedly not produced before the

tribunal. However, from the record and the judgment, it is

seen that the other documents were produced before the

tribunal, from which it is seen that the petitioner continued in

service despite the termination letter dated 23

rd

July 2007.

Once the petitioner completed the probation period of three

years, she would be entitled to deemed permanency in view

of the well-established legal principles.

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18. I have perused the copies of the memos produced on

record on behalf of the management. Memo dated 16

th

July

2006, 24

th

July 2006 and 30

th

July 2006 are referred to in the

termination letter dated 23

rd

July 2007. The termination letter

records that the petitioner’s services are terminated with

effect from 16

th

July 2007. It is contended on behalf of the

management that the petitioner was never continued in

service after 16

th

July 2007. The termination letter dated 23

rd

July 2007, relied upon by the management records that

memos dated 24

th

July 2006 and 30

th

July 2006 were issued

to the petitioner. Thus, the copies of the memos relied upon

by the management show that the petitioner was in

continuous service till 16

th

July 2007. Thus, it is clear that the

petitioner completed the three-year probation period. Hence,

the reasons recorded by the tribunal that the petitioner would

not be entitled to permanency would not be sustainable in

view of the admitted facts as recorded in the above

paragraphs.

19. The management receives 100% grant from the

government. There appears to be no dispute that for the

period of three years of probation, the petitioner received her

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salary upto April 2007 through the 100% grant received by

the school. The petitioner has claimed salary from May 2007.

Thus, there is no manner of doubt that the petitioner

completed the probation period of three years. Even if the

management’s contention is accepted that the petitioner was

not continued after expiry of the period of three years, the

termination letter dated 23

rd

July 2007 relied upon by the

management with backdated effect itself shows that the

petitioner was in service as on 23

rd

July 2007. Therefore, on

16

th

July 2007, the petitioner completed three year probation

period. Hence, the petitioner would be entitled to deemed

permanency. Therefore, there would be no question of

terminating the petitioner’s services without following the due

procedure prescribed in the MEPS Act for termination of a

permanent teacher.

20. In Assaram Raibhah Dhaga , a petition was filed

challenging termination of a project displaced person,

appointed as a mustering assistant by issuing a termination

letter with retrospective effect. The petition was allowed

holding that the services of an employee, be he permanent

or temporary, cannot be terminated with retrospective effect.

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In Ram Avadh Mahel Pal, the reference before the Full

Bench of this Court was answered by holding that, in view of

the amendments made by Maharashtra Act XIV of 2007 to

the MEPS Act, it has been provided that every person

appointed as Shikshan Sevak shall be on probation for a

period of three years. It is further held that, subject to the

provisions of sub-sections (3) and (4) of section 5 of the

MEPS Act, a Shikshan Sevak shall, on completion of the

probation period of three years, be deemed to have been

appointed and confirmed as a teacher.

21. In Gramin Yuvak Vikas Shikshan Mandal Kinhi

Naik, a reference to the larger bench was decided on the

question pertaining to section 5(3) of the MEPS Act and Rule

15 of the Maharashtra Employees of Private Schools

(Conditions of Service) Rules, 1981. The Hon’ble Full Bench

of this Court held that Rule 15 of the MEPS Rules does not

indicate that Rules 15(1) to 15(5) apply to a probationer

along with Rule 15(6) of the MEPS Rules.

22. In the present case, the challenge is to the oral

termination of the petitioner. The petitioner completed her

probation period of three years on 16

th

July 2007; hence, she

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attained deemed permanency. The termination letter dated

23

rd

July 2007 for backdated termination was illegal. The

petitioner was not required to challenge the said termination

as she was continued in service thereafter. Once the

petitioner is entitled to deemed permanency in view of

completion of the probation period, the decision of the Full

Bench in Gramin Yuvak Vikas Shikshan Mandal Kinhi

Naik would not apply in the present case.

23. The decision of the Full Bench of this Court in Ram

Avadh Mahel Pal relied upon by the learned counsel for the

petitioner squarely applies to the facts of the present case. It

is a well-established legal principle that on completion of the

probation period of three years as Shikshan Sevak, the

appointment is deemed to be that of a permanent teacher. In

the impugned judgment, the tribunal has completely

misdirected itself by not considering the admitted facts which

show that the petitioner had completed the period of

probation of three years. The tribunal, misinterpreted the

termination letter dated 23

rd

July 2007, to hold that the

petitioner illegally worked after the said termination. As held

in Assaram Raibhah Dhaga, the services of an employee,

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be he permanent or temporary, cannot be terminated with

retrospective effect. Thus, the Tribunal erroneously held that

as the petitioner never challenged the said order, she was

not entitled to claim permanency. Even otherwise, there is

substantial material on record to show that the petitioner

continued in service after 23

rd

July 2007.

24. The learned tribunal missed an important fact that even

the termination letter dated 23

rd

July 2007 reveals that the

petitioner had continued after the expiry of the probation

period of three years. The termination letter dated 23

rd

July

2007 says that the petitioner’s service is terminated with

effect from 16

th

July 2007; hence, admittedly the petitioner

was working as on 23

rd

July 2007. Therefore, the petitioner

completed her probation period of three years from 17

th

July

2004 upto 16

th

July 2007. Thus, as held by the Full Bench of

this Court in Ram Avadh Mahel Pal, every person appointed

as Shikshan Sevak shall be on probation for a period of three

years and subject to the provisions of sub-sections (3) and

(4) of Section 5 of the MEPS Act, a Shikshan Sevak shall, on

completion of the probation period of three years, be deemed

to have been appointed and confirmed as a teacher.

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25. The management contended before the Tribunal that

the petitioner attended the school after 16

th

July 2007 and

used to forcibly sign the muster roll. The allegations made by

the management that the petitioner had threatened the

management and the Headmaster of filing a criminal

complaint falsely alleging atrocity are not substantiated by

any evidence. The Tribunal has held that the management

took no action against the petitioner regarding the allegation

of illegally making corrections in the appointment order for

changing the period of probation. The management had

issued memos to the petitioner; however, no material is

produced to show that any action permissible under the

MEPS Act and the Rules was taken against the petitioner at

any time during the three-year probation period. Therefore,

vague allegations made by the management would not

disentitle the petitioner from attaining deemed permanency

on completion of the three-year probation period.

26. The Tribunal has unnecessarily relied upon the

allegations that the petitioner was not residing at her

headquarters and that she was simultaneously taking

education in a college at Dhule. Admittedly, during the

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probation period, the management has not taken any action

against the petitioner as permissible under the MEPS Act

read with the said Rules. Hence, based on vague allegations,

it cannot be held that the petitioner did not complete her

probation period. Even otherwise, the termination letter with

backdated effect itself falsifies the allegations of the

management, inasmuch as the letter dated 23

rd

July 2007

terminating services with backdated effect of 16

th

July 2007

shows that the petitioner had completed the probation period

on 16

th

July 2007.

27. The Tribunal has held in paragraph 40 of the impugned

judgment that the petitioner was not allowed to sign muster

from 16

th

June 2008, and she was orally terminated. A

certificate issued by the Education Training Centre,

Nalegaon, dated 8

th

February 2008, a certificate dated 22

nd

October 2008 issued by the Education Officer and the Muster

Roll are referred to and relied upon by the Tribunal to hold

that the petitioner was orally terminated on 16

th

June 2008.

However, the Tribunal has erroneously held that since the

petitioner did not challenge the termination letter dated 23

rd

July 2007 terminating her service with effect from 16

th

July

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2007, she continued in service illegally and was not entitled

to challenge the oral termination.

28. The Tribunal has failed to correctly appreciate the

facts. The Tribunal failed to appreciate that the backdated

termination is illegal. Such a termination is not known to law.

Hence, the Tribunal committed grave error in not granting

relief to the petitioner, despite recording a finding that there

was oral termination on 16

th

June 2008. The Tribunal further

erroneously held that since there was no permanent post, the

petitioner was not appointed on a permanent post by

following due process. The Tribunal failed to consider that

there is no dispute on the petitioner’s appointment as

Shikshan Sevak pursuant to the advertisement. The

appointment order dated 15

th

December 2004 is also not

disputed. The only objection raised by the management

was that the petitioner had illegally changed the period of

service in the appointment order from one year to three

years. In one of the replies submitted by the petitioner in

response to the notice/memo issued by the management, the

petitioner has contended that on the instructions of the

management, the period was changed from one year to 3

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years in the appointment order. However, even as per the

findings recorded by the Tribunal, the petitioner has worked

upto the date of oral termination.

29. It is an important factor in favour of the petitioner that

her appointment order as Shikshan Sevak was issued

pursuant to the public advertisement for filling up five vacant

posts of Shikshan Sevak. The material on record, including

the illegal termination letter dated 23

rd

July 2007, supports

the petitioner’s contention that she has successfully

completed the probation period of three years for claiming

deemed permanency. As discussed in the above

paragraphs, the termination letter itself is sufficient proof that

the petitioner was in service up to 23

rd

July 2007, inasmuch

as the termination letter records that her services were

terminated with backdated effect from 16

th

July 2007.

Therefore, on completion of the probation period of three

years from 17

th

July 2004 to 16

th

July 2007, the petitioner has

attained permanency in view of the well-established legal

principles as discussed in the above paragraphs. Therefore,

her services could not have been terminated without

following the procedure for termination of a permanent

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teacher as provided under the MEPS Act read with the said

Rules framed thereunder. During the probation period, no

action under sub-sections (3) and (4) of section 5 of the

MEPS Act was taken against the petitioner. Hence, the

petitioner’s oral termination from 17

th

June 2008 is illegal and

must be set aside.

30. The management went to the extent of making serious

allegations by alleging negligence against the petitioner for

the death of one female student in the hostel. The Tribunal

has not accepted this allegation for want of any supporting

proof. However, making such serious allegations in the

absence of any iota of evidence reflects on the conduct of

the management in making false allegations. There is no

material produced to show that the petitioner was appointed

as a resident teacher and that she was assigned any duty at

the girls’ students’ hostel. The circular produced by the

learned AGP does not show any provision that all the

Shikshan Sevaks appointed in the schools having hostel

facilities are required to work as resident teachers.

31. Admittedly, respondent no. 3 is a resident school

(Ashram Shala), and one girl student died in the hostel. The

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management has made vague allegations against the

petitioner that she was responsible for the death of the girl

student in the hostel. The Tribunal has rightly disbelieved

the said allegations for want of any evidence. However, such

an incident reflects on the negligence of the management.

32. Although the petitioner has pleaded in this petition that

she was not gainfully employed after her termination, she

has not raised any such plea in the Tribunal. It is a well-

established legal principle that such a plea must be raised at

the first instance. Therefore, full backwages cannot be

granted. However, the petitioner has worked upto 16

th

June

2008. She has contended that she has not been paid salary

from May 2007. The management has not produced any

material to show that the petitioner was paid salary from May

2007 till the oral termination from 17

th

June 2008. Hence, the

petitioner is entitled to full salary with all applicable service

benefits from May 2007 till the oral termination from 17

th

June

2008. In view of the peculiar facts and circumstances of the

case as discussed above, the petitioner shall also be entitled

to the cost of the litigation from the management. The cost is

quantified at Rs. 1,00,000/- (Rupees One Lakh Only).

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33. For the reasons recorded above, the impugned

judgment warrants interference in the exercise of writ

jurisdiction under Article 227 of the Constitution of India.

34. Hence, the petition is allowed by passing the following

order:

i) The judgment and order dated 23

rd

June 2015

passed by the Presiding Officer, School Tribunal,

Nashik Region, Nashik in Appeal No. 34 of 2012 is

quashed and set aside.

ii) The Appeal No. 34 of 2012 is allowed. The oral

termination from 17

th

June 2008 is declared illegal

and is set aside.

iii) The petitioner is directed to be reinstated as a

deemed permanent teacher with effect from 17

th

July

2007 with continuity in service, for all purposes

including retirement benefits.

iv) The respondents shall take all necessary steps

within six weeks from today to reinstate the

petitioner as directed by this order.

v) If the respondents fail to reinstate the petitioner as

directed by this order, the petitioner shall be entitled

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to the payment of salary from the date of expiry of

the period of six weeks from today.

vi) The petitioner is entitled to full salary with applicable

service benefits for the period from May 2007 to 16

th

June 2008. Respondent no. 3, i.e. the management

and Respondent no. 5, i.e. the Head Master, shall

take appropriate steps to pay the full salary as

directed by this order within six weeks from today,

failing which Respondent no. 3 shall pay interest at

6% along with the payable amount from the date of

expiry of the period of six weeks till actual payment.

vii) Respondent no.3, i.e. the management, shall pay

the cost of the litigation to the petitioner within six

weeks from today. The cost is quantified at

Rs. 1,00,000/- (Rupees One Lakh Only).

[GAURI GODSE, J.]

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