Case Note & Summary
The petitioner, appointed as a Shikshan Sevak in respondent No. 2 School after a regular selection process against a sanctioned vacancy arising from the retirement of a teacher, was orally terminated on 31 August 2012 without any written order or reason. She had been continuously working since 18 January 2005, initially with artificial breaks, and was appointed as Shikshan Sevak on 10 January 2011. Despite the availability of a sanctioned post, the Management did not forward her appointment proposal for approval, leading to the Education Inspector refusing approval. The petitioner challenged her termination before the School Tribunal, which initially partly allowed her appeal but denied reinstatement. That order was set aside by the High Court, and on remand, the Tribunal again denied reinstatement, holding that the Management's minority status and her status as Shikshan Sevak (not a probationer) did not entitle her to protection. The writ petition under Articles 226 and 227 of the Constitution challenged this decision. The core legal issues were whether the oral termination violated Section 5(3) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, and whether the availability of a sanctioned vacant post compelled reinstatement. The petitioner argued that the termination was illegal as no notice or pay in lieu was given and no unsatisfactory performance was alleged, and that the Management's failure to forward the proposal could not be held against her. The respondent Management contended that the petitioner, as a Shikshan Sevak, had not completed three years to become a probationer and thus Section 5(3) did not apply, and that the sole issue before the Tribunal was minority status. The Court examined the pleadings and found that the termination was oral and without compliance of mandatory procedure, that the Management's own lapse in seeking approval could not defeat the employee's rights, and that the existence of a sanctioned vacant post was a material fact ignored by the Tribunal. It held the termination illegal and set aside the impugned order, directing reinstatement. The judgment underscores the protection available to probationers and the duty of management to follow due process.
Headnote
A) Service Law - Termination of Probationer - Procedure under Section 5(3) - Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 - The petitioner was appointed as a Shikshan Sevak against a sanctioned vacant post after a regular selection process, and her services were orally terminated without a written order or compliance with the mandatory procedure of notice or pay in lieu and proof of unsatisfactory work - Held that non- compliance with Section 5(3) rendered the termination illegal (Paras 1-11). B) Service Law - Approval of Appointment - Management's Duty - Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 - The Management failed to forward the proposal for approval of the petitioner's appointment to the Education Department, leading to refusal of approval; however, such lapse by the Management cannot be used to prejudice the employee's rights - Held that the employee cannot suffer for the Management's default (Para 16). C) Employment Law - Reinstatement - Availability of Vacant Post - Material Fact - Evidence showed that one sanctioned post was available in the School, yet the Management discontinued the petitioner's service on the ground of non-availability of vacancy; the Tribunal's failure to consider this fact vitiated its order - Held that existence of a sanctioned vacancy was a relevant factor for grant of reinstatement (Paras 14-15).
Issue of Consideration
Whether the oral termination of a Shikshan Sevak without following the procedure under the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, and ignoring the availability of a sanctioned vacant post, is illegal.
Final Decision
The writ petition is allowed. The impugned judgment and order dated 12 January 2016 passed by the Presiding Officer, School Tribunal, Mumbai in Appeal No.16 of 2014 is set aside. The petitioner is directed to be reinstated with continuity of service and consequential benefits. Rule made absolute in the above terms.
Law Points
- Services of a probationer can be terminated only if work or conduct is unsatisfactory and after following due procedure including notice or pay in lieu
- Management cannot take advantage of its own failure to forward approval proposal to deny employee's rights
- existence of sanctioned vacancy is a material fact for legality of discontinuance
- oral termination without written order is arbitrary and illegal.
