WP 4272 of 2016.odt

1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH AT NAGPUR

WRIT PETITION NO. 4272/2016

PETITIONERS :1. The Vidarbha Youth Welfare

(Original Society, a society registered under the

Resp. No.1) Societies Registration Act, 1960 and

having its registered office at Camp,

Amravati through its President.

2. The Principal, Vadarbha Youth Welfare

(Original Society’s Polytechnic, Badnera,

Resp. No.2) Anjangan Bari Road, Badnera (Rly.)

Dist. Amravati.

...VERSUS...

RESPONDENTS :1. The State of Maharashtra

through its Secretary, Deptt. of

Higher and Technical Education,

Mantralaya, Mumbai – 400 032.

(Original 2. Deputy Director of Technical

Resp. No.3) Education, Regional Office,

Amravati, Tq. & Dist. Amravati.

(Original 3. Shri Manohar Govindram Kalalkar,

Appellant) aged 44 Yrs., Occu : not known,

R/o Waruda, Badnera, Amravati,

Tq. & Dist. Amravati.

WITH

WRIT PETITION NO. 4270/2016

PETITIONERS :1. The Vidarbha Youth Welfare

(Original Society, a society registered under the

Resp. No.1) Societies Registration Act, 1960 and ::: Uploaded on - 15/11/2021 ::: Downloaded on - 30/08/2025 21:42:45 :::

WP 4272 of 2016.odt

2

having its registered office at Camp,

Amravati through its President.

2. The Principal, Vadarbha Youth Welfare

(Original Society’s Polytechnic, Badnera,

Resp. No.2) Anjangan Bari Road, Badnera (Rly.)

Dist. Amravati.

...VERSUS...

RESPONDENTS :1. The State of Maharashtra

through its Secretary, Deptt. of

Higher and Technical Education,

Mantralaya, Mumbai – 400 032.

(Original 2. Deputy Director of Technical

Resp. No.3) Education, Regional Office,

Amravati, Tq. & Dist. Amravati.

(Original 3. Shri Vilas S/o Madhukar Yewale (Yeole),

Appellant) age : 27 years, Occu : not known,

R/o Bhankhada (Khu.) Tq. & Dist. Amravati.

WITH

WRIT PETITION NO. 4271/2016

PETITIONERS :1. The Vidarbha Youth Welfare

(Original Society, a society registered under the

Resp. No.1) Societies Registration Act, 1960 and

having its registered office at Camp,

Amravati through its President.

2. The Principal, Vadarbha Youth Welfare

(Original Society’s Polytechnic, Badnera,

Resp. No.2) Anjangan Bari Road, Badnera (Rly.)

Dist. Amravati. ::: Uploaded on - 15/11/2021 ::: Downloaded on - 30/08/2025 21:42:45 :::

WP 4272 of 2016.odt

3

...VERSUS...

RESPONDENTS :1. The State of Maharashtra

through its Secretary, Deptt. of

Higher and Technical Education,

Mantralaya, Mumbai – 400 032.

(Original 2. Deputy Director of Technical

Resp. No.3) Education, Regional Office,

Amravati, Tq. & Dist. Amravati.

(Original 3. Shri Pankaj Rajesh Ingle

Appellant) age : 41 years, Occ : not known,

R/o Talvel, Tq. Chandur Bazar,

Dist. Amravati.

WITH

WRIT PETITION NO. 4269/2016

PETITIONERS :1. The Vidarbha Youth Welfare

(Original Society, a society registered under the

Resp. No.1) Societies Registration Act, 1960 and

having its registered office at Camp,

Amravati through its President.

2. The Principal, Vadarbha Youth Welfare

(Original Society’s Polytechnic, Badnera,

Resp. No.2) Anjangan Bari Road, Badnera (Rly.)

Dist. Amravati.

...VERSUS...

RESPONDENTS :1. The State of Maharashtra

through its Secretary, Deptt. of

Higher and Technical Education,

Mantralaya, Mumbai – 400 032. ::: Uploaded on - 15/11/2021 ::: Downloaded on - 30/08/2025 21:42:45 :::

WP 4272 of 2016.odt

4

(Original 2. Deputy Director of Technical

Resp. No.3) Education, Regional Office,

Amravati, Tq. & Dist. Amravati.

(Original 3. Shri Mohan s/o Bharatram Bhise,

Appellant) aged : 34 years, Occ : not known,

R/o C/o Shri Mukund Ughale,

Plot No.42, MIG, Colony, New Town,

Badnera, Tq. & Dist. Amravati.

-----------------------------------------------------------------------------------------------

Shri R.D. Bhuibhar, Advocate for petitioners in all petitions

Shri S.M. Ukey, Addl. G.P. for respondent nos.1 and 2 in all petitions

Shri P.A. Kadu, Advocate for respondent no.3 in all petitions

-----------------------------------------------------------------------------------------------

CORAM : AVINASH G. GHAROTE, J.

Date of reserving the judgment : 01/10/2021

Date of pronouncing the judgment : 15/11/2021

J U D G M E N T

1. Rule. Rule made returnable forthwith. Heard learned

Counsels for the parties.

2. All these petitions by the employer, challenge the

judgments delivered by the learned School Tribunal, Amravati dated

23/3/2016 in Appeals filed by the employees who were terminated

by the petitioners, which termination has been set aside by the

learned School Tribunal by the impugned judgments. Since a ::: Uploaded on - 15/11/2021 ::: Downloaded on - 30/08/2025 21:42:45 :::

WP 4272 of 2016.odt

5

common question arises in these petitions, as indicated below these

petitions have been heard together and are being decided by this

common judgment.

3. In Writ Petition No.4272/2016 the respondent no.3-

Shri Manohar Govindram Kalalkar, had in pursuance to an

advertisement in daily news paper ‘Hindustan’’ published on

12/1/2008 by the petitioner, applied and was initially, by an order

dated 1/2/2008 appointed as a Laboratory Attendant on contract

basis in the Electronics and Telecommunication Department of the

Polytechnic College, run by the petitioner no.1, having been selected

in the interview held on 15/1/2008, and having been recommended

by the Selection Committee. The appointment was stated to be

temporary and on contract basis for the academic session 2007-2008

on fixed remuneration of Rs.2,000/- per month. The said

appointment order indicated that on completion of the session, the

appointment of the respondent no.3 will be automatically

terminated without any prior notice and in case the respondent no.3

agreed to the above terms, he should join duties immediately, which

was so done by the respondent no.3. The respondent no.3 thereafter, ::: Uploaded on - 15/11/2021 ::: Downloaded on - 30/08/2025 21:42:45 :::

WP 4272 of 2016.odt

6

was continued for the subsequent academic sessions with artificial

breaks after each session. On 1/2/2013 a fresh appointment order

came to be issued to the respondent no.3, in which he was again

appointed as a Laboratory Assistant, w.e.f 1/2/2013. Clause -1 of the

appointment order indicated that the appointment was temporary,

however, no period was mentioned. Clause - 2 of the appointment

order, indicated that the appointment was on 1-2 years probation,

which would commence from the date the respondent no.3 joins.

Clause-3 stated that the seniority of the respondent no.3, would be

counted from 1/2/2013 to the post of Laboratory Assistant.

Clause – 7 indicated that in case the respondent no.3 wanted to

leave the employment in the future he would have to give an

advance one month’s notice or salary of one month in lieu of the

same. Clause – 8 required the respondent no.3 to acquire the

requisite educational qualifications, as per the Rules in case he did

not have it. The services of the respondent no.3 came to be

terminated by the order dated 30/4/2014. This order of termination

referred to the order of the Hon’ble Joint Charity Commissioner,

Amravati in Appeal No.3/2010 and Appeal No.4/2010 dated

13/12/2011, whereby the Management of the petitioner no.1- ::: Uploaded on - 15/11/2021 ::: Downloaded on - 30/08/2025 21:42:45 :::

WP 4272 of 2016.odt

7

Society was declared illegal, which was upheld up to the Hon’ble

Apex Court. It further indicated that the Executive Council of the

Society in its meeting held on 29/3/2014 had resolved to follow the

decisions as rendered in the above matters. It further referred to the

order of the Chairman dated 30/4/2014, by which he had

communicated that the services of non-teaching staff was appointed

without due procedure approved by competent authority and was

required to be terminated immediately, placing reliance upon which,

the services of the respondent no.3 were terminated with immediate

effect. This termination came to be challenged by the respondent

no.3 by filing an appeal under Section 9 (1) of the Maharashtra

Employees of Private Schools (Conditions of Service) Regulation Act,

1977 (for short, “the MEPS Act”, hereinafter), in which by judgment

dated 23/3/2016, the learned School Tribunal, Amravati has

allowed the same, thereby quashing and setting aside the

termination order dated 30/4/2014 and directing reinstatement

with all consequent benefits of continuity and back wages, which is

the subject matter of challenge in the present petitions. ::: Uploaded on - 15/11/2021 ::: Downloaded on - 30/08/2025 21:42:45 :::

WP 4272 of 2016.odt

8

3.1. In Writ Petition No.4269/2016, the respondent no.3-

Shri Mohan Bharatram Bhise, in pursuance of an advertisement in

daily news paper ‘Hindustan’’ published on 12/1/2008, issued by the

petitioner, had applied for the post of Laboratory Attendant, and was

interviewed by the Selection Committee on 15/1/2008, which

selected him, pursuance to which by an order dated 1/2/2008, he

was appointed on temporary/contract basis for the academic session

2007-08 on fixed remuneration. This appointment was continued

from time to time with artificial breaks at the end of each academic

session and on 1/2/2013, the petitioner was appointed as a

Laboratory Attendant. The language of his appointment order is

identical with that of the petitioner in Writ Petition No.4272/2016.

The respondent no.3, came to be terminated on 30/4/2014. Appeal

preferred by him to the School Tribunal came to be allowed on

23/3/2016.

3.2. In Writ Petition No.4270/2016, the respondent no.3-

Shri Vilas Madhukar Yewale (Yeole), in pursuance of an

advertisement in daily news paper ‘Hindustan’ published on

12/1/2008, issued by the petitioner, had applied for the post of ::: Uploaded on - 15/11/2021 ::: Downloaded on - 30/08/2025 21:42:45 :::

WP 4272 of 2016.odt

9

Laboratory Attendant, and was interviewed by the Selection

Committee, on 15/1/2008 which selected him, pursuance to which

by an order dated 2/2/2009, he was appointed on

temporary/contract basis for the academic session 2008-09 on fixed

remuneration. This appointment was continued from time to time,

with artificial breaks at the end of each academic session and on

12/2/2014, the petitioner was appointed as a Laboratory Attendant.

The language of this appointment order is identical with that of the

petitioner in Writ Petition No.4272/2016. The respondent no.3,

came to be terminated on 30/4/2014. Appeal preferred by him to

the School Tribunal came to be allowed on 23/3/2016.

3.3. In Writ Petition No.4271/2016, the respondent no.3-

Shri Pankaj Rajesh Ingle, in pursuance of an advertisement in daily

news paper ‘Hindustan’ published on 12/1/2008, issued by the

petitioner, had applied for the post of Laboratory Attendant and was

interviewed by the Selection Committee on 15/1/2008, which

selected him, pursuance to which by an order dated 1/2/2008, he

was appointed on temporary/contract basis for the academic session

2007-08 on fixed remuneration. This appointment was continued ::: Uploaded on - 15/11/2021 ::: Downloaded on - 30/08/2025 21:42:45 :::

WP 4272 of 2016.odt

10

from time to time with artificial breaks at the end of each academic

session and on 1/2/2013, the petitioner was appointed as a

Laboratory Attendant. The language of his appointment order is

identical with that of the petitioner in Writ Petition No.4272/16. The

respondent no.3, came to be terminated on 30/4/2014. Appeal

preferred by him to the School Tribunal came to be allowed on

23/3/2016.

4. Shri R.D. Bhuibhar, learned Counsel for the petitioners

submits that:

(a) The appointment of the respondent no.3, by the order

dated 1/2/2008, after advertisement, interview, selection and

recommendation by the Selection Committee, was on a contract

basis for the academic session 2007-2008.

(b) This was continued four times till 2013, in which year

by the order dated 1/2/2013, the respondent no.3 was appointed

again as a Laboratory Attendant on a temporary basis and therefore,

his termination by the order dated 30/4/2014, on the ground that

the Management was complying with the declaration regarding the

Managing Committee being declared illegal and the employment of ::: Uploaded on - 15/11/2021 ::: Downloaded on - 30/08/2025 21:42:45 :::

WP 4272 of 2016.odt

11

the respondent no.3 was without following due procedure of

selection could not be faulted with.

(c) There was no presumption that the appointment was

against a clear/permanent vacancy as it existed in 2008 and the

appointment was only as a stopgap arrangement.

(d) The Tribunal had disregarded the terms of the

appointment dated 1/2/2013. The Format in Schedule-D of the

Maharashtra Employees of Private Schools (Conditions of Service)

Rules, 1981 (for short, “the MEPS Rules” hereinafter), is also relied

upon to contend that the appointment was not on a permanent

basis.

(e) There was no discussion regarding entitlement to full

back wages and the relief was merely granted in the operative part.

(f) Even if the Tribunal was of the opinion that the

termination was illegal it could have instead of directing

reinstatement granted compensation under Section 11 (2) (e) of the

MEPS Act.

(g) There was no plea or material before the learned

Tribunal to indicate that the respondent no.3 had been appointed on

probation. ::: Uploaded on - 15/11/2021 ::: Downloaded on - 30/08/2025 21:42:45 :::

WP 4272 of 2016.odt

12

(h) Relying upon Rule 28 of the MEPS Rules, it is submitted

that in case one month’s notice is not given, that at the most would

entitle the employee, for salary in lieu of notice, which could not be

awarded and there was no question of granting any reinstatement

on this count. No other argument was advanced.

(i) Shri Bhuibhar, learned Counsel for the petitioners relied

upon the decisions in Ramkrishna Chauhan Vs. Seth D.M. High

School and others, 2013 (2) Mh. L.J. 713; Narendra Keshaorao

Meshram Vs. Presiding Officer, School Tribunal, Nagpur and others,

2014 (3) Mh.L.J. 881; Navjeevan Shikshan Sanstha, Bhishnur and

another Vs. Chandrashekhar Anandraoji Rewatkar and others, 2015

(1) Mh.L.J. 782 , which has been reversed in Civil Appeal Nos.842-

843 of 2017 (Chandrashekhar Anandraoji Rewatkar Vs. Navjeevan

Shikshan Sanstha and others), decided on 23/1/2017 by the

Hon’ble Apex Court; Vasant Shikshan Prasarak Mandal Through Its

President and others Vs. Sate of Maharashtra and others, 2017 (1)

Mh.L.J. 67; Rajasthan State Road Transport Corporation, Jaipur Vs.

Phool Chand (Dead) through Legal Representatives, (2018) 18 SCC

299; Society of Sisters of Saint John, Mhasala, Wardha and another

Vs. Arvind s/o Narayan Lajurkar and others, 2020 (3) Mh.L.J. 186. ::: Uploaded on - 15/11/2021 ::: Downloaded on - 30/08/2025 21:42:45 :::

WP 4272 of 2016.odt

13

5. Shri P.A. Kadu, learned Counsel for the respondent no.3

submits as under :

(a)The advertisement dated 12/1/2008, does not indicate that

the posts were temporary. Interview was conducted on 15/1/2008

by the Selection Committee, the respondent no.3 was selected and it

is only on the recommendation of the Selection Committee that the

respondent no.3 was appointed and therefore the entire due process

for selection and appointment as required by law was duly followed.

(b)The respondent no.3 was continued for the subsequent

sessions till 2013, though with technical breaks, which would

indicate the continued existence of the vacancy, occupied by the

respondent no.3.

(c) Though the initial appointment was on a temporary

basis the same had to be regarded as being an appointment on

probation. He submits that the judgment of the Full Bench in

Ramkrishna Chauhan (supra) was not attracted.

(d) There was no dispute about the respondent no.3 not

fulfilling the required educational qualifications for the post of

Laboratory Attendant. ::: Uploaded on - 15/11/2021 ::: Downloaded on - 30/08/2025 21:42:45 :::

WP 4272 of 2016.odt

14

(e) Reliance is also placed upon the Resolution of the Local

Management Committee, which had resolved to regularize the

services of all employees working on limited emoluments in its

meeting dated 8/11/2012.

(f) Relying on Section 5 of the MEPS Act, it is submitted

that the Act does not permit the Management to engage the services

of employees on temporary basis for years together, which could

only be done as a stopgap arrangement and not as a continuous

practice, and therefore, in light of the language of Section 5 of the

MEPS Act, it could only be held that the appointment was on

probation for a period of two years. It is therefore submitted that the

first appointment dated 1/2/2008 itself, should be treated as an

appointment on probation.

(g) Once the order of termination is found to be bad in law,

contrary to the requirements of Rule 28 (1) of the MEPS Rules,

reinstatement should follow.

(h) In so far as back wages granted by the learned School

Tribunal is concerned, it was submitted that para 3 records that the

respondent no.3 was not gainfully employed, to which there was no

counter and therefore, in view of what was stated by the Hon’ble ::: Uploaded on - 15/11/2021 ::: Downloaded on - 30/08/2025 21:42:45 :::

WP 4272 of 2016.odt

15

Apex Court in Deepali Gundu Surwase Vs. Kranti Junior Adhyapak

Mahavidyalaya (D.Ed.) and others, (2013) 10 SCC 324 the grant of

back wages could not be faulted with. No other arguments were

advanced.

(i) Shri Kadu, learned Counsel for the respondent no.3

relies upon the decisions in Shikshan Prasarak Mandal, Wani Vs.

Presiding Officer, School Tribunal, Amravati and another, 2005 (4)

Mh.L.J. 485; Ramchandar Ramadhar Yadav Vs. Hyderabad (Sind)

National Collegiate Board and another, 2006 (2) Mh.L.J. 532;

Rehana Begun d/o Sk. Safdar Vs. Khwaja Baba Urdu Education

Society, Amravati and others, 2009 (3) Mh.L.J. 665; Abdul Rafique

Abdul Hamid Vs. Yavatmal Islamia Anglo Urdu Education Society

and others, 2014 (3) Mh.L.J. 99; Shri Bhagwan Mahavir Primary

School and another Vs. Presiding Officer, School Tribunal, Amravati

Division and others, 2014 (3) Mh.L.J. 161; Shamin Azad Education

Society, Giroli and others Vs. Presiding Officer, School Tribunal,

Amravati and others, 2014 (4) Mh.L.J. 723; Maulana Azad

Educational Trust, Aurangabad and others Vs. Uzma Khanam Mirza

Moin Ullah Baig and another, 2016 (5) Mh.L.J. 325; Anil s/o

Govindrao Korde Vs. Siddheshwar Krida Mandal, Sillod and others, ::: Uploaded on - 15/11/2021 ::: Downloaded on - 30/08/2025 21:42:45 :::

WP 4272 of 2016.odt

16

2016 (6) Mh.L.J. 933; Jeevan Shikshan Mandal, Umred and another

Vs. Umesh Gangadharrao Mohod and another, 2019 (6) Mh.L.J.

728.

6. The Full Bench of this Court in Ramkrishna Chauhan

(supra) while considering the question of appointments made by

the managements under Section 5 of the MEPS Act, held as under :

“12. The question is: whether the provisions, extracted above,

have the propensity to whittle down that authority of the

Management? Indisputably, the governing provision regarding

the conditions of service of employees of the private schools can

be traced to section 5 of the Act of 1977. Sub-section (1)

thereof postulates that the Management shall fill in the

permanent vacancy as soon as possible. It further provides that

the appointment of a person duly qualified, to fill permanent

vacancy, should be made in the manner prescribed. It is one

thing to suggest that the permanent vacancy in a private school

must be filled only by a duly qualified person and in the manner

prescribed. But, that does not necessarily mean that the

inherent powers of the Management to make appointment on

contractual basis, is expressly or impliedly taken away, by law.

There is nothing in this sub-section to indicate to the contrary.

13. Indeed, this provision obliges the Management to fill in the

permanent vacancy “as soon as possible”. The term “as soon as

possible” would mean that it has to be done within a reasonable ::: Uploaded on - 15/11/2021 ::: Downloaded on - 30/08/2025 21:42:45 :::

WP 4272 of 2016.odt

17

time. That is a relative term. Nevertheless, by virtue of mandate

of section 5(1), there is implicit obligation on the Management

to fulfil that requirement at the earliest, to wit, before

commencement of the new academic year. That is so because, a

permanent vacancy is one, which is in respect of a sanctioned

post and in the case of an aided school, entitles the

Management to receive commensurate grants in aid from the

Government. Further, the sanctioned post for a school is

prescribed by the State Authority keeping in mind the

benchmark to be maintained for imparting high quality

education and maintaining discipline in the school -

commensurate with the strength of the students in the school.

Thus, keeping the permanent vacancy unfilled for a long time,

may entail in dilution of imparting of quality education. A

fortiori, though the Management has implicit power to appoint

a duly qualified person on contractual employment even against

a permanent vacancy but, that must be only an interim

arrangement till a suitable candidate is found in the selection

process. It cannot be continued on year to year basis in

succession. If the Management holds the selection process in the

prescribed manner but wants to appoint the selected candidate

on temporary basis must contemporaneously record tangible

reasons as to why the selected candidate is not suitable to be

appointed on probation against the permanent vacancy. In that

event, the Appropriate Authority can consider the challenge to

the appointment on temporary basis instead of probation,

against a permanent vacancy. Further, the Management,

receiving grants-in-aid, from the Government, should not and ::: Uploaded on - 15/11/2021 ::: Downloaded on - 30/08/2025 21:42:45 :::

WP 4272 of 2016.odt

18

cannot be permitted to appoint a duly qualified person on

temporary basis against a permanent vacancy, without holding

of selection process as soon as possible in the prescribed

manner. Besides, in spite of availability of a suitable candidate

identified in the selection process held to fill in the permanent

vacancy, the Management cannot appoint him on temporary

basis against a permanent vacancy. Any other view would be

antithesis to the mandate of section 5(1) of the Act and against

the principle underlying the exposition of the Apex Court in the

case of Ratan Lal v. State of Haryana, as it would be hit by

Articles 14 and 16 of the Constitution of India.

14. ---------

15. ---------

16. The question is, whether the Management has unbridled

power and authority to appoint a duly qualified person on

temporary basis against a permanent vacancy? As aforesaid, the

Management is, primarily, under an obligation, in law, by virtue

of section 5(1), to fill in the permanent vacancy as soon as

possible. To wit, if a permanent vacancy is caused by any

reason, before the commencement of the new academic year,

the Management must take immediate steps to fill in that

vacancy, by appointing a duly qualified person, after following

the prescribed procedure, on probation, for a period of two

years. That means, the selection process must be held to, as far

as possible, culminate with selection of a duly qualified person,

before the commencement of the new academic year. However,

for some fortuitous or tangible reason, such selection process

cannot be commenced or for that matter completed, there ::: Uploaded on - 15/11/2021 ::: Downloaded on - 30/08/2025 21:42:45 :::

WP 4272 of 2016.odt

19

would be nothing wrong if the Management were to appoint a

duly qualified person on contractual or temporary basis, for a

limited duration, so that, in the mean time, the prescribed

procedure to select a duly qualified person, to fill in the

permanent vacancy is completed and the selected person can be

appointed on probation, against the permanent vacancy. There

may be situation where the Management makes efforts in right

earnest to complete the selection process but, at the end of the

process, it is confronted with a situation where the person who

participated in the selection process, though duly qualified, in

its perception is not suitable for appointment. In that event, it

can certainly make an appointment on contractual or temporary

basis, for a limited duration, so that new selection process can

be commenced and concluded within a reasonable time.

17. Ordinarily, if the selection process is commenced and at the

end of the selection process a person duly qualified is available

and is found to be suitable, the Management is under an

obligation to appoint him on probation, to fill in the permanent

vacancy. This mandate flows from conjoint reading of sub-

section (1) and (2) of section 5. The only exception is, where a

person identified in the selection process is duly qualified but is

not found suitable by the Management, the Management is free

to exercise its inherent power of making a contractual or

temporary appointment. Indeed, whether a person, who had

participated in the selection process, is suitable for being

appointed or otherwise, is the subjective satisfaction of the

Management. Merely because a person is duly qualified, that

per se is not enough. The person must not only be duly qualified ::: Uploaded on - 15/11/2021 ::: Downloaded on - 30/08/2025 21:42:45 :::

WP 4272 of 2016.odt

20

to fill the permanent vacancy but, must also be found to be

suitable by the Management. However, the Management cannot

be permitted to take cover under the pretext of successively

rejecting the candidates in selection process on the ground of

suitability; and keep on appointing same person or different

persons on contractual or temporary basis for limited duration,

against a permanent vacancy. In cases where the Management

takes a conscious decision to appoint a duly qualified person on

temporary basis, for a limited period against a permanent

vacancy, it must contemporaneously record its subjective

satisfaction in that behalf. For, if the appointment order on

contractual basis were to be made subject-matter of challenge

before any Authority or Court of law, in such inquiry, it may be

open to examine the controversy on the touchstone of

permissibility of judicial review of such decision. If finding of

colourable exercise of power by the Management is arrived at in

that inquiry, appropriate direction can be issued against the

Management. That will have to be examined on case to case

basis.

18. A priori, 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 ::: Uploaded on - 15/11/2021 ::: Downloaded on - 30/08/2025 21:42:45 :::

WP 4272 of 2016.odt

21

fiction unlike in the case of a person appointed “on probation”

for a period of two years, is deemed to have been confirmed,

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.

19. --------

20. Relying on sub-section (5) of section 5, it was argued that

the Act makes distinction between “permanent vacancy” and a

“temporary vacancy”. While appointing a person against a

temporary vacancy, the order of appointment has to be drawn in

the prescribed form and it must state the period of appointment

of such person. It was submitted that this sub-section is

indicative of the scheme of section 5. It makes a marked

departure when the appointment is to be made against a

permanent vacancy. No doubt, this provision deals with a

specific category of vacancy namely, temporary vacancy and the

manner of filling in that vacancy. However, this provision cannot

be construed to mean as forbidding the Management from

making contractual or temporary appointment in respect of a

permanent vacancy, if the situation so warrants, which is the

implicit power of the Management while making appointment

against a permanent vacancy. The only word of caution we may

add, is, ordinarily, when appointment is to be made against a

permanent vacancy, the Management is obliged to follow the

prescribed procedure in that behalf but, only when the selection

process cannot be taken to its logical end or because of ::: Uploaded on - 15/11/2021 ::: Downloaded on - 30/08/2025 21:42:45 :::

WP 4272 of 2016.odt

22

unsuitability of the candidates, the Management may be

justified in appointing a duly qualified person for a temporary

period. In that case, however, the Management is under a legal

obligation to initiate the process for appointing a duly qualified

suitable person against the permanent vacancy on probation, at

the earliest.

21.--------

22. --------

23. -----

24. The other legal principle, which is indisputable, is that, if

the parties accept the terms and conditions stipulated in the

appointment order, later on, it is not open to the employee to

challenge that appointment, being contrary to the Rules or on

the ground that the terms and conditions stipulated therein

were not legally valid. This legal position is restated in para 8 of

Kalpataru Vidya Samasthe (supra). In the facts of the present

case, it is noticed that the initial appointment of the Writ

Petitioner, in the leading Writ Petition, was on temporary basis

for a limited period. After his service was terminated, once

again he was appointed in the following academic year, on the

same post but, on temporary basis. When the said Petitioner

was appointed in the succeeding academic years, he had

become fully aware about the terms and conditions of his initial

appointment, yet he continued to be in the employment,

without any demur. Suffice it to observe that if the appointment

order mentions that the appointment is on temporary basis or

for a limited period, it is not open to the employee to assume

that he was appointed on probation against permanent vacancy, ::: Uploaded on - 15/11/2021 ::: Downloaded on - 30/08/2025 21:42:45 :::

WP 4272 of 2016.odt

23

nor it is open to the School Tribunal or the Court of law to

assume that fact. That is a question of fact to be pleaded and

proved in appropriate proceedings, on case to case basis. We

hold that there is no legal fiction or deeming provision that

every appointment made against the permanent vacancy, is

deemed to be on probation, though the Management makes that

appointment on temporary basis, having found that the

candidates appeared in the selection process were unsuitable.

28. Accordingly, we are inclined to answer the issue in the

negative. We hold that it is not open to the School Tribunal to

assume as of fact that the appointment made against a clear and

permanent vacancy is deemed to be on probation, within the

meaning of section 5(2) of the Act. The School Tribunal cannot

disregard the terms and conditions of the letter of appointment,

if it expressly provides that the appointment is on temporary

basis, for a limited term.”

Thus, though the right of the Management to appoint a person on a

temporary basis in a permanent vacancy cannot be disputed and the

Tribunal cannot disregard the terms of appointment and assume as

matter of fact that the appointment made against a clear and

permanent vacancy is deemed to be on probation, certain riders

have been put, namely : ::: Uploaded on - 15/11/2021 ::: Downloaded on - 30/08/2025 21:42:45 :::

WP 4272 of 2016.odt

24

(a) the Management cannot be permitted to take cover under the

pretext of successively rejecting the candidates in selection

process on the ground of suitability; and keep on appointing

same persons or different persons on contractual or temporary

basis for limited duration, may be for an academic session, at a

time, against a permanent vacancy, on year to year basis.

(b) in cases where the Management takes a conscious decision to

appoint a duly qualified person on temporary basis, for a

limited period against a permanent vacancy, it must

contemporaneously record its subjective satisfaction in that

behalf.

(c) only when the selection process cannot be taken to its logical

end or because of unsuitability of the candidates, the

Management may be justified in appointing a duly qualified

person for a temporary period. In that case, however, the

Management is under a legal obligation to initiate the process

for appointing a duly qualified suitable person against the

permanent vacancy on probation, at the earliest. ::: Uploaded on - 15/11/2021 ::: Downloaded on - 30/08/2025 21:42:45 :::

WP 4272 of 2016.odt

25

Thus, in all cases where the Management resorts to filling a clear

and permanent vacancy on a temporary basis or on contract basis, it

will have to satisfy, the test of the riders as put upon the exercise of

its powers as spelt out in Ramkrishna Chauhan (supra) and where

an employee is able to point out that these tests are not satisfied

then he would be entitled to call for a presumption of being

appointed on probation, depending upon the facts and

circumstances of each case, for the reason as held in Ramkrishna

Chauhan (supra) that ordinarily, if the selection process is

commenced and at the end of the selection process a person duly

qualified is available and is found to be suitable, the Management is

under an obligation to appoint him on probation, to fill in the

permanent vacancy, which mandate flows from conjoint reading of

sub-section (1) and (2) of Section 5 of the MEPS Act.

7. The law as laid down in Ramakrishna Chavan (supra)

has been taken into consideration by this Court in Shamin Azad

Education Society (supra) [which judgment has been stayed by the

Hon’ble Apex Court in SLP (C) No.14377/2014 by its order dated

4/7/2014; Abdul Rafique Abdul Hamid (supra); Shri Bhagwan ::: Uploaded on - 15/11/2021 ::: Downloaded on - 30/08/2025 21:42:45 :::

WP 4272 of 2016.odt

26

Mahavir Primary School (supra) [ SLP (C) No.10392/2014, against

which has been dismissed by the Hon’ble Apex Court on 2/5/2014] ;

Ramchandar Ramadhar Yadav (supra); Uzma Khanam Mirza Moin

Ullah Baig (supra) wherein the practice of the management of

appointing employees on temporary basis on clear permanent

vacancies for years together was frowned upon and the termination

is set aside directing reinstatement. Shikshan Prasarak Mandal, Wani

(supra) has already been considered in Ramkrishna Chauhan

(supra).

8. In Priyadarshini Education Trust and others Vs. Ratis

(Rafia) Bano d/o Abdul Rasheed and others, 2007 SCC OnLine Bom

720 : 2007 (6) Mh. L.J. 667, the learned Division Bench of this

Court, while considering the provisions of Section 5 of the MEPS Act,

relating to appointments, has held as under :-

“44. In order to claim benefit of deemed permanency, a

teacher must be duly selected, he must be appointed in clear

permanent vacancy, his appointment must not be for a

fixed/limited period, and preferably it ought to indicate that the

appointment is on probation. If and only if these conditions are

fulfilled, a teacher will be able to claim deemed permanency on

completion of service of two years from the date of appointment ::: Uploaded on - 15/11/2021 ::: Downloaded on - 30/08/2025 21:42:45 :::

WP 4272 of 2016.odt

27

on probation or at least by an appointment fulfilling all above

conditions, even though the order may not specifically indicate

that he is appointed on probation.”

9. The position therefore has to be tested on the basis of

facts as availing in the present matters and the riders / tests as laid

down in Ramkrishna Chauhan (supra) and Priyadarshini Education

Trust (supra) being satisfied.

10. The question of suitability of the respondent no.3, in all

these petitions does not arise, as all of them had appeared before the

Selection Committee, were duly interviewed, their educational

qualifications examined and all of them having been found suitable

for the posts, were selected by the Selection Committee, only after

which they were appointed. There is nothing on record to indicate

any subjective satisfaction on part of the petitioner, that even though

the respondent no.3 in all these petitions were duly qualified, the

vacancies were permanent, they complied with the educational

qualifications, were found suitable for the post by the Selection

Committee, why the petitioner took a decision to appoint them for a ::: Uploaded on - 15/11/2021 ::: Downloaded on - 30/08/2025 21:42:45 :::

WP 4272 of 2016.odt

28

limited period, which subjective satisfaction is required to be

recorded as is held by the Hon’ble Full Bench in Ramkrishna

Chauhan (supra). Nor is it a case where the selection process could

not be taken to its logical end, requiring the petitioner to resort to a

temporary/contractual appointment. The petitions thus fail the test

of the riders as laid down in Ramkrishna Chauhan (supra) as there is

nothing on record placed by the petitioner before the learned School

Tribunal or in these petitions, to indicate that the riders as put by the

Hon’ble Full Bench in Ramkrishna Chauhan (supra) were satisfied.

This being the position, then considering the mandate of

Section 5(1) of the MEPS Act, as elucidated in Ramkrishna Chauhan

(supra) itself, the appointment of the respondent no.3, in all these

petitions, ought to be considered on probation since the date of their

appointment, itself.

11. There is no dispute that in all the petitions the

appointment of the respondent no.3/employee at the initial stage,

was after inviting the application by publishing advertisement, which

was so published in the local daily ‘Hindustan’ on 12/1/2008,

conducting of interview by the Selection Committee on 15/1/2008, ::: Uploaded on - 15/11/2021 ::: Downloaded on - 30/08/2025 21:42:45 :::

WP 4272 of 2016.odt

29

in which they were declared successful, having also satisfied the

educational criteria for the post for which they were selected. It is

also not disputed that the appointment of these persons was in clear

and permanent vacancies, as is indicated by their continuation in the

said post from 2008 till 2014, though with formal orders of

termination, after each session.

12. A perusal of the advertisement dated 12/1/2008, as

published in the local daily ‘Hindustan’, clearly demonstrates that

applications were being invited for filling the five (5) vacant posts of

Laboratory Attendants, available with the petitioner. The

advertisement though states that these vacant posts were to be filled

in on limited monthly remuneration of Rs.2000/- it does not state

that such an appointment would be either on contract or temporary

basis or for a limited duration. The modus operandi of the

Management, in spite of the availability of clear and permanent

vacancies, of appointing employees on temporary or contract basis

for years together has been time and again frowned upon by the

Courts, as such an action, does not ensure stability in the field of

education. ::: Uploaded on - 15/11/2021 ::: Downloaded on - 30/08/2025 21:42:45 :::

WP 4272 of 2016.odt

30

13. It is also material to note that the minutes of the Local

Managing Committee dated 8/11/2012, vide Resolution No.9 A,

placed on record indicate that the Local Managing Committee had

resolved to regularise the services of such Laboratory Attendants,

who had completed 5 years of service with the petitioner, which

again supports the position that the appointment of the respondent

no.3, in all the petitions was in a clear and permanent vacancy.

14. That the appointment of the respondent no.3 in all the

petitions was in a clear and permanent vacancy is a position which is

also not disputed by the petitioner and the procedure and

requirement as clarified by this Court in Priyadarshini Education

Trust (supra) also stood complied with/ fulfilled.

15. Thus in absence of the petitioner passing the riders as

enunciated in Ramkrishna Chauhan (supra) it will have to be held

that the dictum of Section 5(2) of the MEPS Act, which mandates

that every person appointed to fill a permanent vacancy shall be on

probation for a period of two years, on completion of which he shall

be deemed to have been confirmed, will have to be applied to the ::: Uploaded on - 15/11/2021 ::: Downloaded on - 30/08/2025 21:42:45 :::

WP 4272 of 2016.odt

31

respondent no.3, in all these petitions, which has been so applied by

the learned School Tribunal and in my considered view rightly.

16. The object of the MEPS Act, as is evident from the

preamble is to regulate the recruitment and conditions of service of

employees in certain private schools in the State, with a view to

provide such employees security and stability of service to enable

them to discharge their duties towards the pupils and their

guardians in particular, and institution and society in general,

effectively and efficiently. This being the purpose for enactment of

the MEPS Act, the Managements cannot be permitted to appoint and

continue such appointments, on contract or temporary basis, with

formal orders of termination, after each session, contrary to the

riders as put in Ramkrishna Chauhan (supra) as permitting the

Management to do so, would defeat the very purpose of the

enactment.

17. Even presuming otherwise, and taking into

consideration the argument of Shri Bhuibhar, learned Counsel for

the petitioners that the appointment orders dated 1/2/2013 and ::: Uploaded on - 15/11/2021 ::: Downloaded on - 30/08/2025 21:42:45 :::

WP 4272 of 2016.odt

32

12/2/2014, vide Clause no.1, specifically stated that the

appointment was temporary, Clause no.2 in the same order cannot

be lost sight of, which specifically states that the appointment of the

respondent no.3, was on probation of 1-2 years, which would

commence from the date of joining and considering the purpose of

the enactment, the provisions will have to be beneficially interpreted

in favour of the employee, and it will have to be held that the

appointment was on probation, and therefore the same could not

have been terminated without following the mandate of Section 5(3)

of the MEPS Act [see Rehana Begum d/o Sk. Safdar (supra)], which

is not spelt out from the termination orders, considering which also

the termination order could not be sustained. So also considering

what has been held regarding the appointment of the respondent

no.3, in all these petitions, the provisions of Rule 28 (1) of the MEPS

Rules, would clearly not be attracted in view of which Narendra

Keshaorao Meshram (supra) would not be applicable on the facts of

the present matter. So also as this is not a case of termination on the

ground of misconduct, Umesh Gangadharrao Mohod (supra) would

also not be attracted. ::: Uploaded on - 15/11/2021 ::: Downloaded on - 30/08/2025 21:42:45 :::

WP 4272 of 2016.odt

33

18. The reading of Section 5 of the MEPS Act, does not

indicate that the prior permission of the Education Officer is

necessary to fill in a vacancy. What the proviso to Section 5(1)

mandates is that in case of the Management intending to fill in a

vacancy by appointment, before doing so, it shall ascertain from the

Education Officer, whether there is any suitable person available on

the list of surplus persons maintained by the Education Officer, for

absorption in other schools and in case of such person being

available, to appoint such person in such vacancy. The purpose

behind this is obvious, to continue the employment of a person, who

was already appointed by following the due process of law. This is an

obligation, obviously upon the management and not upon the

person who is appointed after due selection in a clear vacant post,

and thus such appointee cannot be penalised due to the default on

part of the Management in this regard, more so, when such

appointee, has been permitted to continue in employment for years

together. That apart there is nothing on record to indicate that there

was any failure on part of the petitioner/Management in regard to

the requirement of the proviso to Section 5(1) of the MEPS Act and

that the Education Officer on this count had initiated any action ::: Uploaded on - 15/11/2021 ::: Downloaded on - 30/08/2025 21:42:45 :::

WP 4272 of 2016.odt

34

against the petitioner/Management. Had there been any such a

failure, the Education Department would not have permitted the

continuation of the respondent no.3, in all the petitions for years

together. Vasant Shikshan Prasarak Mandal (supra) relied upon by

Shri Bhuibhar, learned Counsel for the petitioners, therefore on facts

would not be attracted. Chandrashekhar Anandraoji Rewatkar

(supra) has been set aside by the Hon’ble Apex Court in SLP

No.842-843 of 2017 decided on 23/1/2017 and is of no assistance

to Shri Bhuibhar, learned Counsel for the petitioners.

19. The contention that the Managing Committee, which

appointed the respondent no.3, in all these petitions, was declared

as illegal by the learned Joint Charity Commissioner, Amravati, in

Appeal No.3/2010 and Appeal No.4/2010, by the judgment dated

13/12/2011, has to be viewed in the context of the background in

which it was passed. The Managing Committee which appointed the

respondent no.3, in all these petitions, initially by the appointment

orders dated 1/2/2008 and 2/2/2009, which were continued

thereafter, from time to time, with formal orders of termination,

after each session, claimed that it was elected in the meeting held on ::: Uploaded on - 15/11/2021 ::: Downloaded on - 30/08/2025 21:42:45 :::

WP 4272 of 2016.odt

35

3/12/2006. A change report filed under Section 22 of the

Maharashtra Public Trusts Act, for recording this change vide

Enquiry No.135/2007, was accepted by the Incharge Deputy Charity

Commissioner, Amravati, vide his judgment dated 7/12/2009.

Appeal filed against this judgment was allowed on 13/12/2011,

which thereafter was carried up to the Hon’ble Apex Court, which is

said to have maintained the judgment in appeal. There is however,

no order placed on record, which would indicate that there was any

restraint upon the Managing Committee which had appointed the

respondent no.3, in all these petitions, to do so, in view of which the

appointment of the respondent no.3, in all these petitions cannot be

faulted with.

20. In Phool Chand (supra) relied upon by Shri Bhuibhar,

learned Counsel for the petitioners, after considering Deepali Gundu

Surwase (supra) relied upon by Shri Kadu, learned Counsel for the

respondent no.3, the Hon’ble Apex Court has held as under :

“11. In our considered opinion, the courts below completely

failed to see that the back wages could not be awarded by the

Court as of right to the workman consequent upon setting aside

of his dismissal/termination order. In other words, a workman ::: Uploaded on - 15/11/2021 ::: Downloaded on - 30/08/2025 21:42:45 :::

WP 4272 of 2016.odt

36

has no right to claim back wages from his employer as of right

only because the Court has set aside his dismissal order in his

favour and directed his reinstatement in service.

12. It is necessary for the workman in such cases to plead and

prove with the aid of evidence that after his dismissal from the

service, he was not gainfully employed anywhere and had no

earning to maintain himself or/and his family. The employer is

also entitled to prove it otherwise against the employee, namely,

that the employee was gainfully employed during the relevant

period and hence not entitled to claim any back wages. Initial

burden is, however, on the employee.

13. In some cases, the Court may decline to award the back

wages in its entirety whereas in some cases, it may award

partial, depending upon the facts of each case by exercising its

judicial discretion in the light of the facts and evidence. The

questions, how the back wages are required to be decided, what

are the factors to be taken into consideration awarding back

wages, on whom the initial burden lies, etc. were elaborately

discussed in several cases by this Court wherein the law on

these questions has been settled. Indeed, it is no longer res

integra. These cases are, M.P. SEB v. Jarina Bee [M.P. SEB v.

Jarina Bee, (2003) 6 SCC 141 : 2003 SCC (L&S) 833],Haryana

Roadways v. Rudhan Singh [Haryana Roadways v. Rudhan

Singh, (2005) 5 SCC 591 : 2005 SCC (L&S) 716] ,U.P. State

Brassware Corpn. Ltd. v. Uday NarainPandey [U.P. State

Brassware Corpn. Ltd. v. Uday Narain Pandey, (2006) 1 SCC

479 : 2006 SCC (L&S) 250],J.K. Synthetics Ltd. v. K.P. Agrawal

[J.K. Synthetics Ltd. v. K.P. Agrawal, (2007) 2 SCC 433 : (2007) ::: Uploaded on - 15/11/2021 ::: Downloaded on - 30/08/2025 21:42:45 :::

WP 4272 of 2016.odt

37

1 SCC (L&S) 651] ,Metropolitan Transport Corpn. v. V.

Venkatesan [Metropolitan Transport Corpn. v. V. Venkatesan,

(2009) 9 SCC 601 : (2009) 2 SCC (L&S) 719] , Jagbir Singh v.

Haryana State Agriculture Mktg. Board [Jagbir Singh v. Haryana

State Agriculture Mktg. Board, (2009) 15 SCC 327 : (2010) 1

SCC (L&S) 545] and Deepali Gundu Surwase v. Kranti Junior

Adhyapak Mahavidyalaya [Deepali Gundu Surwase v. Kranti

Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324 : (2014)

2 SCC (L&S) 184] .

14. The Court is, therefore, required to keep in consideration

several factors, which are set out in the aforementioned cases,

and then to record a finding as to whether it is a fit case for

award of the back wages and, if so, to what extent.”

In Allahabad Bank and others Vs. Krishan Pal Singh, Civil Appeal

No.5808/2021 [arising out of SLP (C) No.19648 of 2019], decided

by the Hon’ble Apex Court on 20/9/2021, it has been held that

reinstatement with full back wages is not automatic in every case,

where termination/dismissal is found to be not in accordance with

procedure prescribed under law and in circumstances it would be

permissible to award compensation instead.

The Learned School Tribunal, has while narrating the

averments in the Application under Section 9 in the impugned ::: Uploaded on - 15/11/2021 ::: Downloaded on - 30/08/2025 21:42:45 :::

WP 4272 of 2016.odt

38

judgment, has not made any mention regarding the pleas contained

therein regarding the claim for entitlement for back wages. The

impugned judgment/s also do not speak of any such averment by the

respondent no.3, much less anything on record, so as to enable the

learned School Tribunal to have arrived at the conclusion that while

directing reinstatement, full back wages were to be awarded. There

is absolutely no discussion whatsoever in the impugned judgment/s

in this regard. Full back wages have been awarded merely for the

asking, which clearly would not be permissible in view of what has

been said in Phool Chand (supra) and Allahabad Bank (supra),

considering which the grant of back wages by the learned School

Tribunal cannot be sustained.

21. In so far as the Format in Schedule-D is concerned, a

Format in itself does not confer any right whatsoever, and is only a

method in which the requirement can be depicted/solicited, and

digression from a Format would not mean denial of a right conferred

by Statute or accruing to a person, due to his selection.

::: Uploaded on - 15/11/2021 ::: Downloaded on - 30/08/2025 21:42:45 :::

WP 4272 of 2016.odt

39

22. As regards the contention of Shri Bhuibhar, learned

Counsel for the petitioners, that the learned School Tribunal ought

to have exercised the powers under Section 11(2)(e) of the MEPS

Act and awarded compensation instead of reinstatement by relying

on Arvind Narayan Lajurkar (supra), it is necessary to note that

Arvind Narayan Lajurkar (supra) was a case in which while directing

compensation instead of reinstatement, what weighed with the

Court was that there were series of complaints against the teacher,

whose services were terminated, regarding his unruly and abusive

behaviour in the school and the charges as levelled against the

employee in this regard were also proved, the termination being set

aside on account of not granting an opportunity to cross-examine the

witnesses, and the Tribunal, instead of directing holding of a de

novo enquiry, had directed reinstatement. In the instant case there is

no such unruly or abusive behaviour alleged against the respondent

no.3 in all these petitions and there was no enquiry conducted, on

account of which the case is clearly distinguishable on facts. That

apart, Section 11(2)(e) of the MEPS Act, would only be attracted

where the learned School Tribunal, comes to a conclusion not to

reinstate an employee, in which case the question of granting any ::: Uploaded on - 15/11/2021 ::: Downloaded on - 30/08/2025 21:42:45 :::

WP 4272 of 2016.odt

40

compensation can be considered, so as to compensate the employee

on account of loss of employment and possibility of getting or not

getting suitable employment, which is not the case in the present

matter as the learned School Tribunal, has directed reinstatement,

which as indicated above, is being upheld by this Court.

23. In the result, the petitions are partly allowed. The

direction of the learned School Tribunal granting back wages in all

the impugned judgments, is hereby quashed and set aside. Rest of

the judgment is maintained. Rule is made absolute in the above

terms. No order as to costs.

(AVINASH G. GHAROTE, J.)

Wadkar ::: Uploaded on - 15/11/2021 ::: Downloaded on - 30/08/2025 21:42:45 :::