RAMKRISHNA CHAUHAN Vs. SETH D. M. HIGH SCHOOL

JUDGEMENT

(1.) This Full Bench has been constituted by the learned Chief Justice in the light of reference made by the learned Single Judge of this Court Brother Justice Dr. D. Y. Chandrachud, in Writ Petition No. 315 of 2006, on 22nd January, 2007, by a speaking order. His Lordship in the reference order has adverted to the two line of decisions of this Court and also to the decisions of the Apex Court. His Lordship, has opined that in view of the law laid down by the Apex Court, in Hindustan Education Society and Ors. Vs. S. K Kaleem S. K. Gulam Nabi and ors., 1997 3 Supreme 292 and the subsequent decisions in the case of Bhartiya Gramin P. Sanstha vs. Vijay Kumar and Co., 2002 6 SCC 707 and Kalpataru Vidya Samastha vs. S.B. Gupta, 2005 7 SCC 524 it may not be within the jurisdiction of the Tribunal to hold that an employee, who has been appointed on temporary basis, to be deemed to be appointed on probation, on the ground that there was a clear and permanent vacancy. Further, even the Division Bench of this Court, in the case of Venkatraman Shankar vs. Jasbir Kaur Anand and Ors, Decided on 6th August, 1999 in Review Petition No. 16 of 1997, in Appeal No. 273 of 1997, in Writ Petition No. 2799 of 1990, has taken the same view. On the other hand, the exposition in two decisions of Learned Single Judge of this Court, in the case of Shri. Sairam Education Trust vs. Lalsaheb More and Anr., Decided on 25th August, 2005 in Writ Petition No. 902 of 1993 and in the case of Shikshan Prasarak Mandal vs. Presiding Officer, School Tribunal, 2005 6 BCR 311, is contrary to the principle enunciated by the Apex Court as well as the Division Bench of this Court. In the reference order, other decisions adverted to are in the case of National Education Society s High School vs. Lulomool Monachary, 1987 2 BCR 521, Anil Vasant Chaudhari vs. People's Education Society, Decided on 5th August, 1987 in Writ Petition No. 4714 of 1987, Kazi Safiruddin Muzaffaruddin vs. The State of Maharashtra and Ors., Decided on 28th November, 2005 in Writ Petition No. 2668 of 2005, Kazi Safiruddin Muzaffaruddin vs. The State of Maharashtra, Decided on 18th April, 2006 in Appeal No. 228 of 2006 arising out of Writ Petition No. 2268 of 2005, Siddharth Charitable Trust vs. Pandurang Maruti Dhumal, Decided on 7th July, 1999 in Writ Petition No. 3488 of 1999 (This decision has been upheld by the Supreme Court in SLP (C) No.14795 of 1999 decided on 22nd November, 1999), Mathuradas Mohta College of Science, Nagpur vs. R. T. Borkar and Ors., 1997 2 MhLJ 168, Kalpataru Vidya Samasthe (R) and Ors. Vs. S. B. Gupta and Ors., 2005 7 SCC 524.

(2.) Accordingly, the learned Single Judge directed the Registry to place the papers before the Learned Chief Justice, in order to constitute Larger Bench to answer the following question:"

(3.) The brief facts, which have given rise to the filing of the said Writ Petition, in which reference to Larger Bench has been made, can be delineated as under:The Writ Petitioner possesses M.A., B.Ed. Degrees. He was fully qualified to teach in secondary school. He was appointed in respondent No. 1 school, as a full time Assistant Teacher from 21st July, 1999. The initial appointment order indicated that he was appointed only for the academic year, though the appointment was a7gainst a clear, open and permanent vacancy. The appointment order dated 17th July, 1997 was made over to the Petitioner on 30th March, 1998. On the same day, he was issued a letter of termination, terminating his service w.e.f. 30th April, 1998.