HINDUSTAN EDUCATION SOCIETY AND ANR. versus SK. KALEEM SK. GULAM NABI AND ORS.

Citation: [1997] 2 S.C.R. 910 · Decided: 10-03-1997 · Supreme Court of India · Bench: K. RAMASWAMY, G.T. NANAVATI · Disposal: Appeal(s) allowed
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Judgment (excerpt)

A 
HINDUSTAN EDUCATION SOCIETY AND ANR. 
v. 
SK. KALEEM SK. GULAM NABI AND ORS. 
MARCH 10, 1997 
B 
[K. RAMASWAMY AND G.T. NANAVATI, JJ.) 
Service Law : 
Maharashtra Employees of P1ivate School (Condition of Service) 
C Regulation Act, 1977 : 
S.5--Temporary appointmellt-'lJ.ppointment made tempormily for 11 
months---Claim for regularisation allowed by High Court-Held, the appoint-
ment cannot be considered to be a pennanent appointment-Direction issued. 
by High Court that respondent no. 1 was regularly appointed is clearly illegal 
D and is set aside. 
CIVIL APPELLATE JURISDICTION: Civil "Appeal No. 1971 of 
1997. 
I 
From the Judgment and Order dated 31.7.96 the Bombay High Court 
E in W.P. No. 5821 of 1995. 
F 
G 
S.V. Deshpande for the Appellants. 
The following Order of the Court was delivered : 
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 arc appearing neither in person nor through . 
counsel. 
Leave granted. 
Sim e, the respondents are appearing neither in person nor through 
counsel, we have taken the assistam;:e of Shri Deshpande, learned counsel 
appearing for the appellants and ,'gone through the relevant rules and 
orders of appointment. The admitted position is that respondent No. 1 
came to be appointed on June 10, 1992 against a clear vacancy with the 
H following stipulation : 
910 
HINDUSTAN EDN. SECY. v. SK. KALEEM SK. GULAM NABI 
911 
"Your appointment is purely temporary for a period of 11 months A 
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 ag&inst a clear vacancy. The appoint-
B 
ments 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 the manner 
prescribed every permanent vacancy in a private school by appoint-
ment of a person duly qualified to fill in such vacancy. 
c 
Providing that, unless such vacancy is to be filled in by D 
promotion, the Management shal~ 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 E 
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-section ( 4) and (5), he shall, on coinpletion of this probation 
period of two years, be.deemed to have been .confirmed. · · 
F 
(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 
anytime during the said period after giving him one month's notice, G 
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.Management in the same 
schoolor any other school belonging to it within a period of one 
year from which his services were terminated, then the period of H 
912 
SUPREME COURT REPORTS 
(1997] 2 S.C.R. 
A 
probation undergone by him previously shall be taken into con-
sideration in calculating the required period of probation for the 
purposes of sub-section (2). 
B 
c 
( 4A) Nothing in sub-section (2), (3) or ( 4) shall apply to a person 
appointed to fill a permanent vacancy by promotion or by absorp-
tion 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." 
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
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