ANIL DATTATRAYA ADE Vs. PRESIDING OFFICER SCHOOL TRIBUNAL

JUDGEMENT

(1.) THE petitioner, a Lecturer by profession, employed in the respondent No. 2-Institute is aggrieved by the judgment and order passed, by the Presiding Officer, School Tribunal, Amravati, and Aurangabad, on 16th january, 1986 in Appeal No, 43/1984 filed by him under section 9 of the maharashtra Employees of Non-Government Schools (Conditions of Service.)Regulation Act, 1977, hereinafter referred to as "the Act". The learned Presiding Officer partly allowed the appeal. The petitioners challenge to the legality and propriety of the order of termination dated 29-6-1984 was not accepted by the Tribunal, as it recorded a finding that the said order of termination was legal and valid, but the learned Presiding Officer granted relief of one months salary (pay and allowances) in lieu of the notice to be paid by the respondent no. 2 within a reasonable time of two months, with further direction to the government to deduct the said amount, if not paid from the grant-in-aid of the respondent No. 2. In effect the petitioner had failed to get any substantial relief in his appeal and he has, therefore, challenged the impugned judgment and order under Article 226 of the Constitution of India, in this petition. When he filed the present petition, he claimed to be of the age of 37 years in 1986. He had to wait for a period of 17 years and the turn of the 20th Century to get his turn of hearing of the petition at our hands.

(2.) BEFORE we deal with the facts and the merits of the petition, we may mention that the Pull Bench of our High Court headed by The Hon'ble Chief justice by the judgment dated 13th March, 2003, reported in (Anil Dattatraya adev. Presiding Officer, School Tribunal), 2003 (3) Bom. C. R. (F. B.) (N. B.)465 : 2003 (2) Mh. L. J. 316 held that the M. E. P. S. Act is applicable to the Institute of the respondent Nos. 2 and 3. We need not dwell on the point of applicability of the said Act as it has been finally concluded by the Full Bench as far as this court is concerned. The Full Bench has finally concluded in paragraph 70 of the judgment as under :--

(3.) THE facts of the present petition are in a very narrow compass. The petitioner was appointed as a Lecturer in the respondent No. 2-Institute on 9-5-1981 with effect from 1-7-1981 to teach the subject of "pharmacy" for the academic year 1981-82. It was mentioned in the said appointment letter that the appointment was temporary for the academic year 1981-82 and that he will have to serve the institution at least for two years and that the same period will be his probation period. Thereafter the Principal of the institute by an office order dated 30-4-1982 informed the petitioner that his services were continued further from the next academic year i. e. 1982-83. It was also stipulated therein that the probation period was to be of two years from the date of joining. The petitioner joined the service from 1-7-1981. By an office order dated 7-10-1983, the petitioner was informed that his probation period was extended by one year. It was further stipulated in the said order that he will be informed as and when he would be confirmed finally by an office order dated 29-6-1984. The petitioner was informed that he would be completing the probation period on 30-6-1984 and that it was decided by the management not to continue his services and, therefore, he was relieved from the services on 30-6-1984. Being aggrieved by the said order of termination, the petitioner approached the School Tribunal by filing an appeal under section 9 of the Act and prayed for a declaration that the impugned order of termination should be held to be invalid and inoperative and that the petitioner should be treated as continued in the service as a permanent Lecturer and he should be reinstated on the same post with full backwages and continuity of service. It was the contention of the petitioner that he was appointed in a permanent vacancy of Lecturer and he became permanent after completion of two years' probation period from the date of appointment order dated 30-4-1982 to 30-4-1984. According to the petitioner, under section 5 (2) of the Act, the petitioner was deemed to have become permanent on 29-4-1984 on which date he acquired the status of permanent employee of the institute and, therefore, according to the petitioner, he could not be terminated from the employment except in accordance with the provisions of the Act. He further contended that in view of several good certificates issued by the institute about his satisfactory work, the management could not allege that the work of the petitioner was unsatisfactorily to enable it to terminate him from employment on that ground as a probationer. Alternatively and additionally, it was urged by shri Deshpande, the learned Counsel for the petitioner that the period of probation was in fact, requires to be computed from the first of appointment namely 9-5-1981, which order was continued by another order dated 30-4-1982. According to the learned Counsel the proposed period of the petitioner had, in fact, was completed on 9-5-1983 though it was purportedly tried to be extended by an order dated 7-10-1983. Shri Deshpande submitted that the aforesaid purported extentionjrf probation period by one year was to be ignored as redundant. The petitioner was deemed to have been completed his probation period on the basis of appointment order dated 9-5-1981 on 9-5-1983 and therefore, the aforesaid letter dated 7-10-1983 was only a clever attempt to deny the petitioner from the benefit of permanency and regularization in service. Even assuming, says the learned Counsel, that the continuation order dated 30-4-1982 is to be treated as an appointment order even from that date the petitioner had completed two years of probation period of service on 30th April, 1984. He became a regular permanent employee under section 5 of the Act on 30-4-1984. He was purportedly terminated from the employment by an order dated 29-6-1984 with effect from 30-6-1984 when he had acquired the status of permanent and regular employee of the institute. It was further urged by Shri Deshpande that the service record of the petitioner was satisfactory and nothing adverse was ever communicated to him by the respondent Nos. 2 and 3 of the institute, Shri Deshpande, therefore, concluded that the impugned judgment and order of the School Tribunal deserves to be quashed and set aside, and the petitioner should be held to be illegally terminated from the employment and that he was entitled to be reinstated with full back wages and continuity of service with effect from 30-6-1984. According to Shri Deshpande the School Tribunal committed an error of law in applying the Maharashtra Civil Services Rules to the institute and the servants employed by it including the petitioner. The learned School Tribunal erred in holding that under the said Rules, which were made applicable to the institute the probation period of the petitioner could be extended beyond two years as the Management had such power to do. According to the school Tribunal, until an order of confirmation was issued, the petitioner continued in service as an unconfirmed employee, and that there was no deeming fiction of becoming permanent and regular in service under M. C. S. Rules automatically. The learned Counsel further assailed the finding of the tribunal that until the probation period was specifically ended and the petitioner was specifically ordered to be confirmed in service, the management had every right to terminate such an employee during the period of his probation.