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REPORTABLE

        IN THE SUPREME COURT OF INDIA

        CIVIL APPELLATE JURISDICTION

          CIVIL APPEAL No. 6498 OF 2016        (ARISING OUT OF SLP (C) No. 30834/2014)

Pragati Mahila Samaj & Anr. …….Appellant(s)

VERSUS

Arun & Ors. ……Respondent(s)

          J U D G M E N T

Abhay Manohar Sapre, J.

1. Leave granted.

2. This appeal is filed against the final judgment

and  order  dated  01.08.2014  passed  by  the  High

Court of Judicature at Bombay Bench at Nagpur in

Writ  Petition  No.  2374 of  1999 whereby the High

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Court allowed the writ petition filed by respondent

No.1  herein  and  set  aside  the  order  dated

05.08.1998 passed by the College Tribunal, Nagpur

University, Nagpur in Appeal No. N-10 of 1998 and

quashed  the  termination  order  dated  31.03.1998

issued  by  appellant  No.1  herein  by  which  the

services  of  the  respondent  No.  1  had  been

terminated.  The  High  Court  further  directed  the

concerned  authorities  to  reinstate  the  respondent

No.1 on the post of Lecturer but without payment of

any back wages to him.  

3. Facts  of  the  case  lie  in  a  narrow  compass.

They, however, need mention in brief to appreciate

the  short  controversy  involved  in  the  appeal.  The

facts are taken from the SLP.  

4. Pragati Mahila Mahavidyalaya (appellant No.2

herein) is a girls college at Bhandara, Maharashtra.

It is run by appellant No. 1, which is a registered

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trust/society  at  Bhandara.  The  appellant  No.  2

published an advertisement on 23.06.1996 inviting

application  for  the  posts  of  Lecturers.   The

respondent No.1 was selected and was accordingly

given  appointment  for  the  post  of  Lecturer  in

Geography as part-time Lecturer vide appointment

order  dated  20.07.1996.  The  appointment  was

temporary. It was for a fixed period from 01.08.1996

to 30.04.1997.  It came to an end by efflux of time.

In  the  Academic  Session  1997-1998,  another

advertisement  was  issued  and  vide  appointment

order  dated  21.07.1997,  respondent  No.  1  was

appointed as  part-time Lecturer  in Geography on

temporary basis upto 30.04.1998.   On 21.03.1998,

the  Nagpur  University  (respondent  No.2  herein)

granted approval to the appointment of respondent

No.1 as a part-time Lecturer.   

5. According  to  the  respondent  No.1,  he  was

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appointed  as  full-time  Lecturer.  The  respondent

No.1  also  made  a  complaint  to  the  Grievance

Committee of the University to this effect.  However,

vide order dated 31.03.1998 (Ann. 5), the services of

respondent No.1 were terminated w.e.f. 30.04.1998.

6. Challenging  the  order  of  termination,

respondent  No.1 filed an appeal  being Appeal  No.

N-10  of  1998  before  the  University  and  College

Tribunal,  Nagpur  (in  short  “the  Tribunal”)  under

Section 59 of the Maharashtra University Act, 1994.

By order dated 05.08.1998, the Tribunal dismissed

the appeal and upheld the termination order. It was

held that the respondent No.1 was not appointed on

a regular  basis  but his  appointment  was only  on

temporary/ad-hoc basis and it was for a specified

term as a part-time Lecturer.  

7. The respondent No.1, felt aggrieved, filed a writ

petition being Writ Petition No. 2374 of 1999 before

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the High Court praying for setting aside of the order

of Tribunal dated 05.08.1998  passed in Appeal No.

N-10  of  1998.   The  High  Court  vide  order  dated

16.12.2008 partly allowed the writ petition and set

aside the order of Tribunal dated 05.08.1998 and in

consequence  also  set  aside  the  termination  order

dated 31.03.1998. The High Court further directed

the Management to reinstate the respondent No.1 in

services but without payment of any back wages to

the respondent No.1.   

8. Challenging the said order, the College filed an

appeal  being  L.P.A.  No.  26  of  2009  before  the

Division Bench of the High Court.   

9. By order dated 23.06.2009, the Division Bench

disposed of the appeal and remanded the matter to

the Single Judge of the High Court for deciding it

afresh on merits.

10. After remand, the writ petition was restored to

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its original number, i.e. W.P. No. 2374 of 1999. It

was, however, dismissed for want of prosecution by

order dated 08.07.2010.

11. Thereafter  an  application  being  Civil

Application No. 149 of 2010 was filed by respondent

No.1 for restoration of the writ petition. It was also

dismissed in default on 08.04.2011.

12. In  2012,  the  respondent  No.1  filed  another

application for restoration of the writ petition.  It is,

however,  not  clear  from  the  pleadings  as  to  by

which order,  the Writ  Petition  was restored to its

file.  Be  that  as  it  may,  vide  impugned  judgment

dated 01.08.2014, the Single Judge allowed the writ

petition,  set  aside  the  order  dated  05.08.1998

passed by  the  Tribunal  in  Appeal  No.  N-10/1998

and  quashed  the  termination  order  dated

31.03.1998.  It  was  held  that  the  advertisement

(Ann.1)  nowhere  said  that  the  appointment  is

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temporary.  It  was  also  held  that  since  the

appointment was made on the basis of selection and

interview and hence it has to be held as permanent.

The direction was issued to reinstate the respondent

No. 1 in service but without paying him any back

wages for long intervening period.  

13. Challenging the said judgment,  the appellants

have filed this appeal by way of special leave before

this Court.

14. Heard Mr. A.K. Sanghi, learned senior counsel

for the appellants and Mr. Nitin Bhardwaj, learned

counsel  for  respondent  No.1,  Mr.  Kishor  Lambat,

learned  counsel  for  respondent  No.2  and  Ms.

Shubhada  K.  Phattankar,  learned  counsel  for

respondent No.3.  We have also perused the written

submissions filed by the parties.

15. Mr.  A.K.  Sanghi,  learned  Senior  Counsel

appearing for the appellant,   urged two points. In

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the first place, learned counsel contended that the

Single Judge of the High Court erred in allowing the

writ petition filed by respondent No.1 and thereby

erred  in  setting  aside  the  order  of  the  Tribunal

which had rightly upheld the termination order of

respondent No.1.

16. In the second place,  Mr.  Sanghi  pointed out

that the appointment of respondent No.1 to the post

of Lecturer was part-time in nature as is clear from

the advertisement (Ann.1).  Learned counsel further

pointed out that the appointment being temporary

as well  as  for  a fixed period as is  clear  from the

appointment  orders  (Annexures  2  &  3),  the

respondent No.1 had no right to claim the status of

permanent  employee  in  service  for  want  of  any

material  and  seek  the  relief  of  regularization  and

reinstatement.

17. Learned counsel further submitted that since

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the  appointment  of  respondent  No.1  is  regulated

and controlled by the provisions of the Maharashtra

Employees of Private Schools (Conditions of Service)

Regulation Act, 1977 (in short "The Act"), the nature

of respondent No.1’s appointment coupled with the

legality and correctness of the termination order is

required to be decided in the first instance in the

light of the relevant provisions of the Act. Learned

Counsel  contended  that  the  High  Court

unfortunately  did  not  even  take  note  of  any

provision of  the  Act  which has  application to  the

facts of the case.  

18. Learned  counsel  then  submitted  that  this

Court  had  the  occasion  to  examine  this  very

question, which is the subject matter of this case, in

the case of  Hindustan Education Society & Anr.

vs. SK. Kaleem SK. Gulam Nabi & Ors reported in

(1997) 5 SCC 152 wherein this Court examined the

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question in the light of the provisions of the Act and

held  that  the  appointment  of  the  employee

concerned was temporary in nature and, therefore,

he could not be considered as permanent employee.

This  Court  repelled  all  the  submissions  of  the

employee,  which  were  pressed  in  service  for

challenging the order of termination, and upheld the

termination order as being legal.   

19. Learned  Counsel,  therefore,  submitted  that

keeping in view the provisions of the Act and the law

laid down in Hindustan Education Society's case

(supra), which again was not taken note of by the

High Court, the impugned order cannot be said to

be passed in conformity with the law and hence it is

not legally sustainable. It was lastly urged that the

writ petition filed by respondent No.1 is, therefore,

liable to be dismissed by upholding the order of the

Tribunal  and  in  consequence  of  the  termination

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order.

20. In reply, learned counsel for respondent No.1

(employee)  supported  the  impugned  order  and

contended that no case is made out to set aside the

impugned  order  as  the  same  is  based  on  proper

reasoning calling for no interference therein.  

21. Having  heard  the  learned  counsel  for  the

parties and on perusal of the record of the case, we

find force in the submissions of the learned counsel

for the appellants.

22. In our considered opinion, learned counsel for

the appellants rightly argued that the rights of the

parties  to  the  case  at  hand  are  governed  by  the

provisions  of  the  Act  and,  therefore,  question

involved in the case needs to be decided keeping in

view the provisions of the Act and the law laid down

in  Hindustan  Education  Society's  case  (supra)

which applies to the facts of this case.

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23. Since  the  question  involved  in  the  case  is

squarely covered by the law laid down in Hindustan

Education society’s case  (supra), it is apposite to

reproduce  the  decision  in  full  rather  than  to

mention its ratio only.  It reads as under:  

“3………The  admitted  position  is  that Respondent  1  came  to  be  appointed  on 10-6-1992 against a clear vacancy with the following stipulation:

“Your 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.”

4. Thus,  it  could  be  seen  that  the appointment  of  the  first  respondent  was only  a  temporary  appointment  against  a clear  vacancy.  The  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:

“5.  Certain  obligations  of Managements  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 appointment of  a  person duly  qualified  to fill such vacancy:

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Provided  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  Officer,  Zilla Parishad, whether there is 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. (2)  Every  person appointed  to fill a permanent vacancy shall be on probation for a period of two  years.  Subject  to  the provisions  of  sub-sections  (3) and  (4),  he  shall,  on completion  of  this  probation period of two years, be deemed to have been confirmed. (3)  If  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. (4)  If  the  services  of  any probationer  are  terminated under sub-section (3) and he is reappointed  by  the

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Management  in  the  same school  or  any  other  school belonging to it within a period of one year from the date on 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). (4-A)  Nothing  in  sub-sections (2),  (3)  or (4)  shall  apply to a person  appointed  to  fill  a permanent  vacancy  by promotion or by absorption as provided under the proviso to sub-section (1). (5) 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.”

5. 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

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appointment of a person duly qualified to fill  in  such  vacancy.  Every  person  so appointed shall be put on probation for a period  of  two  years  subject  to  the provisions of  sub-sections (4)  and (5).  He shall,  on  completion  of  the  probation period of two years, be confirmed.

6. Under  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  31-7-1996  in Writ Petition No. 5821 of 1995 that he was regularly  appointed  is  clearly  illegal  and cannot be sustained.

7. The appeal  is,  accordingly,  allowed. The  order  of  the  High  Court  stands reversed  and  the  writ  petition  stands dismissed. No costs.”

24. Mere perusal  of  the aforementioned decision,

which also mentions in verbatim Section 5 of  the

Act, would go to show that the concerned employee

(writ petitioner) was appointed for a fixed period (11

months)  by  the  Management.  His  services  were,

therefore,  brought to an end on the expiry of  the

period by the Management by passing a termination

order which gave rise to filing of the writ petition by

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the  concerned  employee.  The  High  Court  allowed

the  writ  petition  and  set  aside  the  termination

order.  It  was  held  that  the  writ  petitioner  was

regularly  appointed  in  service  on  selection  and

hence  the  termination  order  treating  him  to  be

temporary  was  bad  in  law.  The  Management,  felt

aggrieved of the order of High Court, came in appeal

to this Court. This Court by aforementioned order

allowed  the  Management’s  appeal,  set  aside  the

order of  the High Court and while  dismissing the

employee’s  writ  petition  upheld  the  termination

order. It was held that the appointment of the writ

petitioner (employee) was governed by Section 5 of

the Act.  It  was further held that the appointment

was  temporary  in  nature  as  is  clear  from  the

appointment  order  itself  and  being  for  a  fixed

period, it was terminable on the expiry of the period.

It  was  also  held  that  since  the  permanent

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appointment was also governed by sub-sections (1)

and (2) of Section 5, it was for the Management to

initiate and fill up the post on permanent basis by

following the procedure prescribed in Section 5 of

the Act. It was also held that the sanction granted

by the competent authorities was confined to writ

petitioner’s temporary appointment and such grant

of  sanction  did  not  result  in  conferring  any

permanent status on the writ petitioner.

25. Coming now to the facts of the case at hand,

we find remarkable similarity in the facts of the case

at  hand  and  the  one  involved  in  Hindustan

Education Society’s Case (supra).  In the case at

hand,   we  find  from the  two  appointment  orders

that the respondent No.1 was temporarily appointed

as Lecturer for one Session in the first instance and

on the expiry  of  the first  period,  his appointment

came to  an end.   The respondent  No.2  then was

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appointed  afresh  second  time,  which  period  was

then  extended up to  30.04.1998.  We further  find

from the advertisement that the post of Lecturer for

Geography was advertised as a part-time post.  

26.  The  relevant  extract  from  the  appointment

orders  dated  20.07.1996  (Annexure-2)  and

21.07.1997 are quoted infra:     

Order dated 20.07.1996        

“Your  appointment  is  temporary  for  one session from 1.8.96 to 30.4.97 period of one session.   Your  services  are  likely  to  be discontinued by giving one month’s notice on either side.”

Order dated 21.07.1997

“Your  appointment  is  on  temporary  basis upto 30.04.1998.  Your services are likely to be discontinued by giving one month’s notice on either side.”

27. We  also  find  that  the  approval  for  the

aforementioned  appointment  was  accorded  by  the

concerned authority vide letter dated 21.03.1998, as

it is without adding any more rights. Taking these

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facts in consideration and keeping in view the law

laid down in Hindustan Education Society’s case

(supra), we are of the view that appointment of the

respondent  No.  1,  whether  first  or  second,  since

inception  remained  a  “temporary  appointment  as

part-time lecturer”  for  a  fixed period and did  not

result  in “permanent appointment”  on the post of

Lecturer. It also did not create any right in favour of

respondent  No.  1  so  as  to  enable  him  to  claim

regularization in service.

28. We  also  find  that  it  is  not  the  case  of

respondent No.1 and nor any finding was recorded

by  the  High  Court  that  the  Management  had

followed  the  procedure  prescribed  under

sub-sections (1) and (2) of Section 5 for filling the

post  against  the  permanent  clear  vacancy  while

selecting the respondent No. 1.  On the other hand,

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we find  as  mentioned  above  that  the  High  Court

neither took note of the provisions of the Act much

less examined the question arising in the case in the

context  of  the  provisions  of  the  Act  and  nor

examined the question in the light of the law laid

down  in  Hindustan  Education  Society’s  Case

(supra).  We also do not  find any material  to hold

that the initial appointment of respondent No.1 was

against  the  permanent  vacancy  and  that  he  was

appointed  permanently  by  the  Management  by

following  the  procedure  prescribed  under

sub-sections (1) and (2) of Section 5 of the Act.  

29. In our view, when the rights of the parties are

governed by  the  Act,  then  it  is  necessary  for  the

Court in the first instance to decide the rights in the

light of the mandate of the provisions of the Act. The

respondent  No.  1  neither  challenged  the

constitutional validity of the Act and nor challenged

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the  termination  on  the  ground  of  mala  fides

attributable  against  any  particular  authority.  The

respondent No. 1 was also not able to point out any

arbitrariness in the impugned action to enable the

High Court to invoke Article 14 of the Constitution

for  quashing  the  termination  order.  In  these

circumstances, we are of the view that there was no

justification  for  the  High  Court  to  hold  that  the

respondent  No.  1  was  appointed  on  permanent

basis and that termination order was bad in law.

30. In  view  of  foregoing  discussion,  we  cannot

concur  with  the  view  taken  by  the  High  Court,

which, in our opinion, is not legally sustainable.

31. The  appeal  thus  succeeds  and  is  allowed.

Impugned order is set aside and that of the Tribunal

restored.  As  a  result,  the  writ  petition  filed  by

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respondent  No.1  (employee)  stands dismissed and

the termination order  dated 31.03.1998 is  upheld

as legal.    

                       ………...................................J.

[J. CHELAMESWAR]

                             …...……..................................J.

 [ABHAY MANOHAR SAPRE] New Delhi; July 19, 2016   

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