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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR
A.H.JOSHI, J.
Mushtaq Shah son of Meheboob Shah — Petitioner.
Versus
Haidariya Urdu Education Society — Respondents.
Writ Petition No.4537 of 2005
Decided on : 21st April,2008.
Satisfactory completion of probation is a sine qua non for getting the status of permanency.
Maharashtra Employees of Private Schools (Conditions of Service)-Regulation Act, 1977 - Section 5(2)(3)-MEPS Rules, 1981, Rules 14 and 15-Probationer-Termination of his services-Performance not satisfactory-Management not recorded in order of termination that performance is unsatisfactory-Failure of management to record as such not vitiates order of termination of services.-End of two years is the only occasion when the management has absolute right to choose either to continue the employee or to dispense with his services. This right has to be accepted to be absolute may be in fit cases and can be brought under judicial scrutiny as to observance of mandatory provisions of law, lest the satisfactoriness of performance as a probationer, which is a matter of absolute executive decision of the management will be brought into scrutiny in an appeal which is not seen to be the intention of Legislature while enacting the Act of 1977.
Keeping these aspects in view failure of the management to record in the order of termination that performance is not satisfactory would not vitiate the termination.
Maharashtra Employees of Private Schools (Conditions of Service)-Regulation Act, 1977 - Section 5(2) and (3) - MEPS Rules, 1981, Rules 14 and 15 - Probationer - Tenure of service - Successive two years - Not ipso facto conferred status of being confirmed or of a deemed permanent employee - Satisfactory completion of probation is a sine qua non for status of permanency to probationer. - On perusal of scheme as emerging from Section 5(2) of the Act and Rules 14 and 15 of the Maharashtra Employees of Private Schools (Condition of Service) Rules, 1981 and Section 5(3) of the Act, it is clear that bare fact of successive two years tenure of service as a probationer or a deemed probation er will not ipso facto acquire or confer upon an employee the status of being confirmed or status of a deemed permanent employee.
Satisfactory completion of probation is a sine qua non for getting the status of permanency.
Maharashtra Employees of Private Schools (Conditions of Service)-Regulation Act, 1977 - Section 5(2)(3) - MEPS Rules, 1981, Rules 14 and 15 - Probationer - Termination of his services - Performance not satisfactory - Management not recorded in order of termination that performance is unsatisfactory - Failure of management to record as such not vitiates order of termination of services. - End of two years is the only occasion when the management has absolute right to choose either to continue the employee or to dispense with his services. This right has to be accepted to be absolute may be in fit cases and can be brought under judicial scrutiny as to observance of mandatory provisions of law, lest the satisfactoriness of performance as a probationer, which is a matter of absolute executive decision of the management will be brought into scrutiny in an appeal which is not seen to be the intention of Legislature while enacting the Act of 1977.
Keeping these aspects in view failure of the management to record in the order of termination that performance is not satisfactory would not vitiate the termination.
1. On 27th October, 2005, this Court ordered Rule returnable early and interim direction to continue the petitioner in the employment.
2. The petition is listed on board for orders in view of the direction of the Hon'ble Supreme Court that the Writ Petition be disposed of within three months from the date of receipt of its order.
3. Petition is, therefore, taken up for hearing forthwith by consent.
4. Heard.
5. Learned Advocate for the petitioner submits that:-
[a] The petitioner was appointed as Assistant Teacher and In-charge Headmaster on July, 1996 on a clear vacancy, however, without an order of appointment.
[b] The petitioner was then appointed as In-charge Headmaster by order dated 28th June, 1997.
[c] The appointment of the petitioner as Assistant Teacher was approved by letter dated 8th July, 1998, for academic year 1996-97, i.e., for only one year.
[d] Since the vacancy, on which petitioner was appointed, was of permanent appointment ought to have been probation for two years and temporary employee for one year nature, made on not as
[e] The employer issued the order dated 3rd April, 1998 terminating petitioner's services with effect from 9th May, 1998.
[f] The termination order does not disclose or reveal any reasons thereof.
[g] Since the petitioner was liable to be and deemed to be on probation, in absence of communication of any adverse comments relating to his performance, his services could not have been terminated.
[h] Having completed two years' service on deemed probation, without any complaints, the petitioner had gained the status of a permanent teacher.
[i] Approval order dated 22nd March, 1999 [Annex.VII] reveals that the petitioner's appointment was approved even for that period without conditions, which proves the petitioner's plea that he was appointed on a clear vacancy.
[j] After the petitioner filed an appeal aggrieved by termination, he was continued in employment due to interim order and said continuation of his services was also approved by the Education Officer by order dated 29th June, 1999 [Annex.VIII] from 21st June, 1999 till end of probation period.
6. After termination, the petitioner preferred
appeal before School Tribunal. The Tribunal heard the
appeal and found that:-
[a] The appellant was liable to be treated as serving on probation.
[b] The procedure prescribed in Section 5 [3] of the Maharashtra Employees of Private Schools [Conditions of Service] Regulation Act, 1977, applied to petitioner's case, and by giving notice of one month, it was done.
[c] The termination, in question, is termed as 'simplicitor' and power to issue such order to a probationer was very well available.
[d] There was no illegality in the said order. The Tribunal, therefore, held that the appeal had no merit and dismissed the same.
7. In this petition, petitioner's sole contention, as is spelt out from oral submissions and written notes tendered in the Court, is that :-
[a] The petitioner's appointment being on a clear vacancy, the Management was under obligation in law to appoint on probation a person working against a clear vacancy.
[b] Though the petitioner was appointed on year to year basis, said continuation of services is liable to be read and construed to be on probation, and probationer's services can be terminated only on unsatisfactory performance, whereas the order of termination does not reveal any such ground.
[c] During the period of two years, the petitioner was never communicated any deficiencies or shortcomings in his work.
[d] The Management cannot, therefore, terminate the services in such a manner, i.e., without assigning any reason and without recording dissatisfaction.
8. As regards his performance during two years, petitioner has averred in para no.2 of appeal as follows:-
“2. .....During the period of service, the work and behaviour of the appellant was good and satisfactory and the appellant rendered the services against the clear and permanent post and as
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