Hindustan Education Society & ANR Vs. SK.
Kaleem SK. Gulam Nabi & Ors  INSC 267 (10 March 1997)
RAMASWAMY, G.T. NANAVATI
O R D
E R Since respondent No.1, it is reported, has refused to receive the notice,
it must be deemed to be sufficient notice. Respondent Nos.5 and 7 have been
served. But they are appearing nether in person nor through counsel.
the respondents are appearing neither in person nor through counsel, we have
taken the assistance of Shri Deshpande, learned counsel appearing for the
appellants and gone through the relevant rules and orders of appointment.
admitted position is that respondent No.1 came to be appointed on June 10, 1992 against a clear vacancy with the
following stipulation :
appointment is purely temporary for a period of 11 months from 11.6.1992 to
10.5.1993 in the clear vacancy. After expiry of the above period your service
shall stand terminated without any notice." Thus, it could be seen that
the appointment of the first respondent was only a temporary appointment
against a clear vacancy. The appointments are against a clear vacancy.
appointments are regulated and controlled by the provisions of the Maharashtra
Employees of Private School (Conditions of Service) Regulation Act, 1977.
Section 5 of the Act postulates as under :
Certain Obligations of Managements of Private Schools (1) The Management shall
as soon as possible fill in the manner prescribed every permanent vacancy in a
private school by appointment of a person duly qualified to fill in such
that, unless such vacancy is to be filled in by promotion, the Management
shall, before proceeding to fill in such vacancy, ascertain from the
Educational Inspector, greater Bombay, or as the case may be, the Education any
suitable person available on the list of surplus persons maintained by him for
absorption in other schools; and in the event of such person being available,
the Management shall appoint that person in such vacancy.
Every person appointed to fill a permanent vacancy shall be on probation for a
period of two years. Subject to the provisions of sub-section (4) and (5), he
shall, on completion of this probation period of two years, be deemed to have
in the opinion of the Management, the work or behaviour of any probationer,
during the period of his probation, is not satisfactory, the Management may
terminate his services at any time during the said period after giving him one
month's notice, or salary of one month in lieu of notice.
the services of any probationer are terminated under sub-section (3) and he is
reappointed by the Management in the same school or any other school belonging
to it within a period of one year from which his services were terminated, then
the period of probation undergone by him previously shall be taken into
consideration in calculating the required period of probation for the purposes
of sub-section (2).
in sub-sections (2), (3) or (4) shall apply to person appointed to fill a
permanent vacancy by promotion or by absorption as provided under the proviso
to sub-section (1).
The Management may fill in every temporary vacancy by appointing a person duly
qualified to fill such vacancy. The order of appointment shall be drawn up in
the form - prescribed in that behalf, and shall state the period of appointment
of such person." In view of the above and the order of appointment, the
appointment of the respondent was purely temporary for a limited period.
Obviously, the approval given by the competent authority was for that temporary
appointment. As regards permanent appointments, they are regulated by sub-
sections (1) and (2) of Section 5 of the Act according to which the Management
shall, as soon as possible, fill up, in the manner prescribed, every permanent
vacancy in a private school by appointment of a person duly qualified to fill
in such vacancy. Every person of two years subject to the provisions of
sub-section (4) and (5). He shall, on completion of the probation of period of
two years, be confirmed.
these circumstances, the appointment of the respondent cannot be considered to
be a permanent appointment. As a consequence, the direction issued by the High
Court in the impugned judgment dated July 31, 1996 in writ petition No.5821/95 that he
was regularly appointed is clearly illegal and cannot be sustained.
appeal is, accordingly, allowed. The order of the High Court stands reversed
and the Writ Petition stands allowed. No costs.