The judgment emphasizes the mandatory requirements for filling permanent vacancies and the consequences of non-compliance with qualification and termination rules under the MEPS Act.

1. This petition takes exception to the judgment and order dated 30.07.2003, passed by the School Tribunal, dismissing the Appeal STN No. 48/2002, filed by the petitioner under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Act. 1977 (hereinafter referred to as “the MEPS Act”), challenging his termination of service by an order dated 09.07.2000.

2. The School Tribunal has held that the appointment of the petitioner through out was temporary on year to year basis and it came to an end on 30.04.2002 and thereafter no order of appointment was issued to the petitioner. The School Tribunal has held that the petitioner cannot get the benefit of deemed confirmation in service by treating him to have been appointed on probation for a period of two years in terms of sub-section (2) of Section 5 of MEPS Act. It has further been held that the petitioner was not qualified as he did not possess the qualification of B.Ed., at the time of his initial appointment.

3. Shri Jibhkate, the learned counsel appearing for the petitioner-employee relying upon the decision of this Court in W.P. No. 1727/2007 (Shri Sant Gajanan Maharaj Bahuuddesihya Shikshan Prasarak Mandal and another vrs. Devendra Bhagwani Matode and others), decided on 08.10.2008; decision in case of Dr. S. R. Ambedkar Samiti and another vrs. Ku. M.L. Lonkar and others,reported in 2000(4) Mh.L.J. 507 and decision in case of PralhadVitthalrlao Bhusari vrs. New Ideal Education Society and others, reported in 2005 (2) Bom. C.R. 48.,has urged that this court has set aside the orders of termination of untrained teachers because of the Government Resolutions issued from time to time extending the period of obtaining training qualification.

4. Relying upon the provisions of Section 4(6) of the MEPS Act read with Rule 28 of the MEPS Rules, he has urged that the services of a temporary employee cannot be terminated except in accordance with the provisions of the Act and the Rules framed thereunder. The requirements of sub-rule (1) of Rule 28 are (a) issuance of one month's notice of termination or payment of one month's salary in lieu of notice, and (b) that, termination cannot be during vacation. He submits that such provisions are mandatory. He submits that there is neither any notice issued nor salary of one month is given. He further submits that in the present case, the order of termination dated 09.07.2002 was issued within a period of one month from the end of sessions on 26.06.2002 and it was during the period of vacation.

5. The undisputed factual position is that the minimum qualification for appointment to the post of an Assistant Teacher were graduation and training i.e. B.Ed. The petitioner was possessing the qualification of B.Com, but was not possessing the training qualification of B.Ed., when he was initially appointed by an order dated 15.07.1999 or even subsequent to it till his termination. The order of appointment was on purely temporary basis for a period of one Session from 19.07.1999 to 07.05.2000. The second order of appointment was issued on 25.06.2000, purely on temporary basis for a period of one session from 01.07.2000 to 07.05.2001. Although, there is no third order of appointment issued, it seems that the petitioner was continued in service till the issuance of an order of termination dated 09.07.2002. The School Tribunal has held that the appointment of the petitioner on both these occasions and its continuation cannot be termed as appointment and continuation on probation in terms of sub-section (2) of Section 5 of MEPS Act for the reason that the petitioner was not qualified to be appointed to the said post.

6. Sub-section (1) and (2) of Section 5 of MEPS Act being relevant, are reproduced below.

“5. Certain obligations of Management of private Schools – (1) The Management shall, as soon as possible, fill in, in the manner prescribed every permanent vacancy in a private school by the appointment of a per