The school tribunal is not bound by the terms and conditions of the letter of appointment and can hold that the appointment of an employee is on probation within the meaning of section 5(2) of the MEPS Act, even if the letter of appointment specifically stipulates that the appointment is on a temporary basis.

By this petition filed under Article 226 of the Constitution of India, the petitioner seeks to impugn the order and judgment dated 28th August, 1997 passed by the learned Presiding Officer, School Tribunal, Mumbai dismissing the appeal filed by the petitioner under section 9 of the Maharashtra Employees of Private Schools (Condition of Service) Regulation Act, 1977. Some of the relevant facts for the purpose of deciding this petition are as under :-

2. It was the case of the petitioner that the petitioner had obtained degree of B.A. from Pune University, M.A. from Bombay University and B.Ed. from Anna Malai University and was appointed as an assistant teacher against clear vacancy in respondent no.2 school w.e.f. June 1990. The petitioner belongs to the open category. The petitioner was continued in the next academic year in the same post in the respondent no.2 school.

3. On 23rd March, 1992 the petitioner was issued a letter terminating her services w.e.f. the end of the academic year 1992-93. It is the case of the petitioner that she was however told that her services would be continued in the next year. On 25th June, 1992 the petitioner challenged the termination by filing an appeal (BOM/158/1992) before the school tribunal, Bombay Region, Bombay under section 9 of the said MEPS Act. The management opposed the said appeal filed by the petitioner by filing the written statement on 13th December, 1992 on several grounds including on the ground that the post against which the petitioner was appointed was specifically reserved for S.C., S.T. It was contended that even in the advertisement issued by the management in response to which the petitioner had applied for the said post it was made clear that the post advertised was reserved for S.C., S.T. etc.

4. It was the case of the management that since the suitable candidate from the reserved category was not available, the petitioner was appointed on temporary basis and the proposal to that effect was sent to the Education Department in view of the school getting the grant-in-aid from the Education Department. The appointment of the petitioner was approved by the Education Department as temporary appointment. It was the case of the management that since in the next academic year, the suitable candidate from the reserved category was available, the services of the petitioner were to be discontinued. It was also contended by the management before the school tribunal that the performance of the petitioner was not at all satisfactory and that there were complaints against her and several warnings were issued to her by the management. It was the case of the management that the petitioner was in fact was not a qualified teacher in as much as the B.Ed. degree obtained by the petitioner from Anna Malai University was not a recognized by the State of Maharashtra.

5. The school tribunal framed three issues which are extracted as under :-

“1. Whether the impugned order of termination dated 23rd March, 1992 is contrary to the provisions of M.E.P.S. Act, 1977 and Rules 1981 or is otherwise illegal or improper within the meaning of section 11(2) of M.E.P.S. Act ?

2. Whether the appellant is entitled to get any relief ?

3. What order ?”

Insofar as issue nos. 1 and 2 are concerned, the school tribunal answered those two issues in negative and accordingly dismissed the said appeal by an order dated 28th August, 1997.

6. In the said order and judgment, the school tribunal rejected the said appeal with the following reasons:-

(a) The appointment letter by which the petitioner herein was appointed to the said post as assistant teacher was not produced by either of the party. It was thus not possible to determine the exact terms and conditions on the basis of the original appointment order and therefore it became necessary to look into the other evidence which had been produced by the management by way of certified copies of the proposal sent to the Education Department for approval.

(b) On perusal of