PRAGATI MAHILA SAMAJ & ANR.versusARUN & ORS.

                       [2016) 3 S.C.R. 243                            243



              PRAGATI MAHILA SAMAJ & ANR.                              A
                                v.
                         ARUN & ORS.
                  (Civil Appeal No. 6498 of2016)
                          JULY 19,2016                                 B

[J. CHELAMESWAR AND ABHAY MANOHAR SAPRE, JJ.)
     Service law: Termination from service of respondent 110. I-
lecturer - High Court quashed the termination order holding. that
since the appointment was made on the basis of selection and
interview, it has to be held as permanent - Held: Appointment to
                                                                       c
post of lecturer was part time in nature - Appointment being
temporary as well as for fixed period. respondent no.I had no right
to claim status of permanent employe.e in service - There was no
iustification for High Court to hold that respondent no. I was
appointed on permanent basis and that termination order )1•as bad      D
in law.
     Allowing the appeal, the Court
     HELD: 1. The two appointment orders show that respondent
no.I was temporarily appointed as Lecturer for one Session in
the first instance and on the expiry of the first period, his          E
appointment came to an end. Respondent No.2 then was
appointed afresh second time, which period was then extended
up to 30.04.I998. The adv.ertisement showed that the post of
Lecturer for Geography was advertised as a part-time post. The
appointment of the respondent No. I, whether first or second,          F
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. It is also not the case of respondent
No.I and nor any finding was recorded by the High Court that           G
the Management had followed the procedure prescribed under
sub-sections (I) and (2) of Section 5 for filling the post against
the permanent clear vacancy while selecting the respondent
No. 1. Moreover, initial appointment of respondent No.I was
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244           SUPREME COURT REPORTS                        [2016) 3 S.C.R.


A     also not against the permanent vacancy nor he was appointed
      permanently by the Management by following the procedure
      prescribed under sub-sections (1) and (2) of Section 5 of the Act.
      [Paras 25, 27, 28] [251-E-F; 252-B-EJ
           2. When the rights of the parties are governed by the Act,
B     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. Respondent No. 1 neither challenged the constitutional
      validity of the Act and nor challenged the termination on the
      ground of mala tides attributable against any particular authority.
      Respondent No. 1 was also not able to point out any arbitrariness
c     in the impugned action to enable the High Court to invoke Article
      14 of the Constitution for quashing the termination order. In
      these circumstances, there was no justification for the High Court
      to hold that respondent No.1 was appointed on permanent basis
      and that termination order was bad in law. [Para 29] [252-F-G]
D           Hindustan Education Society & Am: vs. SK. Ka/eem
            SK. Gu/am Nabi & Ors (1997) 5 SCC 152: 1997 (2)
            SCR 910 - relied on.
                           Case Law Reference
           1997 (2) SCR 910                relied on         Para 18
 E
           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6498 of
      2016.
           From the Judgment and Order dated 01.08.2014 of the Single Bench .
      of the High Court of Bombay bench at Nagpur in W.P. 2374of1999.
 F          A. K. Sanghi, Sr. Adv., Subhasish Bhowmick, Ms. Anamika, Advs.
      for the Appellants.
          Nitin Bhardwaj, Kishor Lambat, Sachin Pahwa, Mis. Lambat &
      Associates, Ms. Shubhada K. Phattankar, Nishant Ramakantrao
      Katneshwarkar, Advs. for the Respondents.
 G         The Judgment of the Court was delivered by
           ABHAY MANOHAR SAPRE, J. I. Leave granted.
           2. This appeal is filed against the final judgment and order dated
      01.08.2014 passed by the High Court ofJudicature at Bombay Bench at
 H    Nagpur in Writ Petition No. 2374of1999 whereby the High Court allowed
          PRAGATI MAHILA SAMAJ & ANR. v. ARUN                                  245
               [ABHAY MANOHAR SAPRE, J.]

the writ petition filed by respondent No. I herein and set aside the order      A
dated 05.08.1998 passed by the College Tribunal, Nagpur University,
Nagpur in Appeal No. N-10of1998 and quashed 2 the termination order
datecj 31.03.1998 issued by appellant No. I 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. I on
                                                                                B
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 Mahi la Mahavidyalaya (appellant No.2 herein) is a girls        c
college at Bhandara, Maharashtra. It is run by appellant No. 1, which is
a registered 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. I 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                    D
temporary. It wa:s 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. I was appointed as part-time Lecturer in 3
Geography on temporary basis upto 30.04.1998. On 21.03.1998, the                E
Nagpur University (respondent No.2 herein) granted approval to the
appointment of respondent No. I as a part-time Lecturer.
      5. According to the respondent No. I, he was appointed as full-time
Lecturer. The respondent No. I also made a complaint to the Grievance
Committee of the University to this effect. However, vide order dated           F
31.03.1998 (Ann. 5), the services of respondent No. I were terminated
w.e.f. 30.04.1998.
     6. Challenging the order of termination, respondent No.I filed an
appeal being Appeal No. N-10of1998 before the University and College
Tribunal, Nagpur (in short "the Tribunal") under Section 59 of the              G
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. I was not appointed on a regular basis but
his appointment was only on temporary/ad-hoc basis and it was for a
specified tenn as a part-time Lecturer.
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246             SUPREME COURT REPORTS                             [2016] 3 S.C.R.



A          7. The respondent No. I, felt aggrieved, filed a writ petition being
      Writ Petition No. 2374of1999 before the High Court praying for setting
      aside of the order ofTribunal dated 05.08.1998 passed in Appeal No. N-
      10 of! 998. The High 4 Court vide order dated 16.12.2008 partly allowed
      the writ petition and set aside the order ofTribunal dated 05.08.1998 and
      in consequence also set aside the termination order dated 3 1.03 .1998.
B
      The High Court further directed the Management to reinstate the
      respondent No. I in services but without payment of any back wages to
      the respondent No. I.
          8. Challenging the said order, the College filed an appeal being
      LP.A. No. 26 of2009 before the Division Bench of the High Court.
c
           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. ·
            I 0. After remand, the writ petition was restored to its original number,
D     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
      20 I 0 was filed by respondent No. I for restoration of the writ petition. It
      was also dismissed in default on 08.04.2011.
E           12. In 2012, the respondent No. I 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 5 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
 F
      dated 31.03.1998. It was held that the advertisement (Ann. I) nowhere
      said that the appointment is 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. I in service but without paying him any back wages for
G     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. I, Mr. Kishor
H
          PRAGATI MAHILA SAMAJ & ANR. v. ARUN                                 247
               [ABHAY MANOHAR SAPRE, J.]

Lambat, learned counsel for respondent No.2 and Ms. Shubhada K.               A
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 the first place, learned counsel contended
that the Single Judge of the High Court erred in allowing the writ petition    B
filed by respondent No. I and 6 thereby erred in setting aside the order
of the Tribunal which had rightly upheld the termination order of
respondent No. I.
      16. In the second place, Mr. Sanghi pointed out that the appointment
of respondent No. I to the post of Lecturer was part-time in nature as is      c
clear from the advertisement (Ann. I). Learned counsel further pointed
out that the appointment being temporary as we! I 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.                                                                 D

      17. Learned counsel further submitted that since 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           E
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      F
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 question in the light of the provisions of the Act and
held that the appointment of the employee concerned was temporary in           G
nature and, therefore, he could not be considered as pennanent 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
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248              SUPREME COURT REPORTS                           [2016] 3 S.C.R.


A      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. I is, therefore, liable to be
       dismissed by upholding the order of the Tribunal and in consequence of
B
       the termination order.
             20. In reply, learned counsel for respondent No.I (employee) 8
      . 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.
c
              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
D      rightly argued thatthe 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.

 E           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
 F
              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."
 G
              4. Thus, it could be seen that the appointment of the first
              respondent was only a temporary 9 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,
 H
   PRAGATI MAHlLA SAMAJ & ANR. v. ARUN                           249
        [ABHAY MANOHAR SAPRE, J.]

1977. Section 5 of the Act postulates as under:                  A
  "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:               B
  Provided that, unless such vacancy is to be filled in by
  promotion, the Management shall, before proceedi,ng 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         c
  suitable person available on the list of surplus persons
  maintained by hini 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         D
   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           E
   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.
                                                                  F
   (4) If the services of any probationer are terminated
   under sub-section (3) and he is reappointed by the
   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        G
   into consideration in caleillating the required period of
   probation for the 10 purposes of sub-section (2).
   (4-A) Nothing in sub-sections (2), (3) or (4) shall apply
                                   a
   to a person appointed to fill permanent vacancy by
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250            SUPREME COURT REPORTS                          [2016] 3 S.C.R.


A              promotion or by absorption as provided un~er 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
B              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
c           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 appointment of a person duly qualified to
D           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.
 E          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
 F          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 ofthe aforementioned decision, which also mentions
 G    in verbatim Section 5 of the Act, would go to show that the concerned
      employee (writ petitioner) was appointed 11 fora 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 the concerned
      employee. The High Court allowed the writ petition and set aside the
 H
          PRAGATI MAHILA SAMAJ & ANR. v. ARUN                                251
               [ABHAY MANOHAR SAPRE, J.]

termination order. It was held that the writ petitioner was regularly         A
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 appe::il, set aside the
order cifthe High Court and while dismissing the employee's writ petition
                                                                              B
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 appointment was also governed by sub-sections (I) and (2)           c
of Section 5, it was forthe Management to initiate and fill up the post on
permanent basis by following the procedure prescribed in Section 5 of
the 12 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
                                                                              D
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. I was
temporarily appointed as Lecturer for one Session in the first instance       E
and on the expiry of the first period, his appointment came to an end.
The respondent No.2 then was 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     F
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              G
       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
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252             SUPREME COURT REPORTS                           [2016) 3 S.C.R.


A           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
      21.0.3 .1998, as it is without adding any more rights. Taking these facts in
      consideration and keeping in view the law laid down in Hindustan
B     Education Society's case (supra), we are of the view that appointment
      of the respondent'No. I, 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. I so as to
      enable him to claim regularization in service.
c
           28. We also find that it is not the case of respondent No. I and nor
      any finding was recorded by the High Court that the Management had
      followed tl!e procedure prescribed under sub-sections (I) and (2) of
      Section 5 for filling the post against the permanent clear vacancy while
      selecting the respondent No. I. On the other hand, we find as mentioned
D     above that the High Court neither took note of the provisions of the Act
      14 much less examined the question arising in the case in the context of
      the provisiomrnfthe 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
 E    respondent No. I 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
 F    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 the termination on the ground of mala tides attributable
      against any particular authority. The respondent No. I 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
 G    order. In these circumstances, we are of the view that there was no
      justification for the High Court to hold that the respondent No. I 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
 H    sustainable.
           PRAGATI MAHJLA SAMAJ & ANR. v. ARUN                                253
                (ABHAY MANOHAR SAPRE, J.]

      31. The appeal thus succeeds and is allowed. Impugned order is          A
set aside and that of the Tribunal restored. As a result, the writ petition
filed by respondent No. I (employee) stands dismissed and the termination
order dated 31.03 .1998 is upheld as legal.
Devika Gujral                                               Appeal allowed.
                                                                               B