Holding

Termination of a probationer under Section 5(3) of the MEPS Act is invalid unless the school complies with Rule 15(6) and Rule 14, which require an objective assessment and proper record of performance.

Summary

The Progressive Education Society appointed Rajendra as a teacher on a two‑year probation starting 9 August 1992. Before the probation period ended, the Society terminated his services on 1 August 1994, citing unsatisfactory performance and paid notice pay. Rajendra challenged the termination under the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, alleging that the school had not complied with the procedural requirements of Rule 15(6) and Rule 14 of the 1981 Rules, and that there was no material to justify the dismissal. The School Tribunal found that the confidential performance report was prepared after the termination and that the required assessment and documentation were absent, setting aside the termination and ordering reinstatement. The Bombay High Court affirmed this view. On appeal, the Supreme Court held that the power to terminate a probationer under Section 5(3) of the Act must be exercised in conformity with Rule 15(6) and Rule 14, requiring an objective assessment and proper record, which the Society had failed to do; consequently, the termination was unjustified and the lower courts' orders were upheld.

Issues considered

Whether the requirements of Rule 14 and Rule 15, particularly sub‑rule 6 of Rule 15 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, govern the exercise of the power to terminate a probationer under Section 5(3) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977.
Whether the Society complied with the mandatory assessment and documentation provisions before invoking the termination power.

Legislation cited

Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977s. 5(3), s. 9
Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981s. Rule 14, s. Rule 15, s. Rule 15(6)

Subjects

probationtermination of serviceprivate school employmentassessment requirementMEPS Actservice lawemployment law

Judgment

[2008] 2 S.C.R. 1005

-~ PROGRESSIVE EDUCATION SOCIETY & ANR. A
II.
RAJENDRA & ANR.
(Civil Appeal No. 1318 of 2008)

FEBRUARY 15, 2008
B
[ A.K.MATHUR AND ALTAMAS KABIR, JJ]

Service Law:
Maharashtra Employees of Private Schools (Conditions
of Service) Rules, 1981 - rr. 14, 15 and 15 (6) - Maharashtra c
Employees of Private Schools (Conditions of Service)
Regulation Act, 1977 - s. 5(3) - Appointment - On probation
- Termination of employee by Management before completion
of probation period on the ground of unsatisfactory
performance - Justification of- Held: Requirements of r. 15(6) D

- ~ and r. 14 not complied with prior to invocation by School
Management of the powers uls 5(3) of the Act-Also documents
produced on behalf of School Management to justify the order
of termination suspicious in nature - Thus, termination not
;ustified - Order of tribunal as well as High Court upheld. E
Appellant no. 1-Society, appointed respondent no. 1
on probation for two years. However, the Management of

.. -...,
the appellant-society terminated the services of the
respondent before completion of the probation period on
the ground of unsatisfactory performance. Respondent F
no. 1 challenged the termination order on the ground that
there was nothing wrong with his performance or
conduct; that the termination was in contravention of s. 5
(3) of the Maharashtra Employees of Private Schools
(Conditions of Service) Reg1Jlation Act, 1977; and that the G
,. > Management did not have any material before it to justify
the termination order. The tribunal set aside the
termination order and di~ected the appellant to reinstate
the respondent. In writ petition, the High court upheld the
1005 H
1006 SUPREME COURT REPO"RTS [2008] 2 S.C.R.

A order of the tribunal and dismissed the writ petition. Hence
the present appeal
Dismissing the appeal, the Court
HELD: 1.1 The law with regard to termination of the
s services of a Probationer is well established and it has
been held that such a power lies with the Appointing
Authority which is at liberty to terminate the services of a
Probationer if it finds the performance of the Probationer
to be unsatisfactory during the period 'Of probation. The
c assessment has to be made by the Appointing Authority
itself and the satisfaction is that of the Appointing Authority
as well. Unless a stigma is attached to the termination or
the Probationer is called upon to show cause for any
shortcoming which may ~ubsequently be the cause for .
termination of the Probationer's service, the Management
0
or the Appointing Authority is not required to give any
explanation or reason for terminating the services except
informing him that his services have been found to be
unsatisfactory. [Para 13] [1012-D-F]
E 1.2 In case of the termination of services of a
probationer, the satisfaction required to be arrived at
under sub-Section (3) of Section 5 of the Maharashtra
Employees of Private Schools (Conditions of Service)
Regulation Act, 1977 has to be read along with Rule 15 of
F the Maharashtra Employees of Private Schools
(Conditions of Service) Rules, 1981, with particular
reference to sub-Rule (6) which provides that the
performance of an employee appQinted on probation is
to be objectively assessed by the Head during the period '
t"
G of his probation and a record of such assessment is to
be maintained. If the two provisions are read together, it
would mean that before taking recourse to the powers
vested under sub-Section (3) of Section 5 of the MEPS
Act, the performance of an employee appointed on
H probation would have to be taken into consideration by

- .
PROGRESSIVE EDUCATION SOCIETY & ANR. v. 1007 .
RAJENDRA & ANR.

..the School Management before terminating his services. A
[Para 14] [1012-G-H; 1013-A·B]
1.3 While Rules 14 and 15 of the MEPS Rules, 1981
cannot override th.e provisions of sub-Section (3) of
Section 5 of the MEPS Act, it has to be said that the
requirements of sub-Rule (6) of Rule 15 would be a factor B
which the School Management has to take into
consideration while exercising the powers which it
undoubtedly has and is recognised under sub-Section
(3) of Section 5 of the Act. [Para 15] [1013-C]
"C
1.4 The Confidential Report which was produced on
behalf of the School Management does not inspire
confidence on account of the different dates which appear
both on Part-I and Part-II of the said Report. This merely
goes to show that the said documents are not above
suspicion and that the requirements of Rule 15(6) and Rule D
14 had not been complied with prior to invocation by the
School Management of the powers under sub-Section (3)
of Section 5 of the MEPS Act. [Paras 16 and 17] [1013-E;
1014-A]
E·
1.5 In such circumstances, the views expressed by
the School Tribunal _as well as the High. Court are
concurred with and there are no grounds to interfere with
the impugned order. [Para 18] [1014-B]
" '1 CIVILAPPELLATE JURISDICTION: Civil~ppeal No.1318 · F
. of 2008.
From the Judgment and Order dated 15.12.2006 of the
High Court of Judicature at Bombay, Nagpur Bench, Nagpur in
Writ Petition No. 939 of 1997.
G
. > Shivaji M. Jadhav for the Appellants.
S.S. Shinde, Asha G. Nair, P.C. Madkholkar, Manish Pitale,
Deepak Gupta and Chander Shekhar Ashri for the
Respondents.
H
1008 syPREME COURT REPORTS [2008] 2 S.C.R.

A The Judgment of the Court was delivered by
ALTAMAS KABIR, J. 1. Leave granted.
2. The Appellant No.1 herein is a Society which runs a
school wherein the Respondent No.1 herein was appointed on
B probation on 4th August, 1992. Pursuant to the order of
appointment, the Respondent No.1 joined his duties in the
school on 9th August, 1992 and his appointment was approved
by the Respondent No.2, The Education Officer (Secondary)
Zilla Parishad, District Wardha, Bombay, on probation for a
c "period of two years from 9th August, 1992. Ordinarily, the period
of probation would have come to an end on 7th August, 1994,
but before completion o( the said period, the service of the
Respondent No.1 was terminated by the Management of the
Appellant-:Society with effect from 31st July, 1994, although the
order of termination was dated 1st August, 1994, on the ground
0
that his work was found to be unsatisfactory during the period
of probation. While terminating his services, the Appellant-
Society also paid a sum of Rs.3076/- to the Respondent No.1
as notice pay.
E 3. The Respondent No.1 challenged the order of
termination of his service before the School Tribunal under
Section 9 of The Maharashtra Employees of Private Schools
(Conditions of Service) Regulation Act, 1977 (hereinafter
referred to as the "MEPS, Act"). The basic ground of challenge
F taken by the Respondent No.1 was that there was nothing wrong ..
with his performance or conduct and that the results in
Mathem-atics, which was his subject, was cent percent. The
-Respondent No.1 also contended that his termination was in
contravention of Section 5(3) of the MEPS Act and the
G Management did not have any material before it to justify the
termination order.
4. The aforesaid appeal preferred by the Respondent No.1
was strongly opposed by the Management and it was reiterated
that the services of the Respondent No.1 had to be terminated
i-1~ on account of the f.~ct that his performance was not satisfactory.
PROGRESSIVE EDUCATION SOCIETY & ANR. v. 1009
RAJENDRA & ANR. [ALTAMAS KABIR, J.]
5. The School Tribunal, however, found in favour of the A
Respondent No.1 mainly on two grounds. It came to a finding
that as required under Rules 14 and 15 of The Maharashtra
Employees of Private Schools (Conditions of Service) Rules,
1981 (hereinafter referred to as the" MEPS Rules, 1981"), no
assessment of the work of Respondent No.1 had been done by B
the Appellant-Society and that what had been produced on behalf
of the Management had been prepared later on. The Tribunal
also found that the Society had not taken any resolution to
terminate the services of the Respondent No.1 and that the
document on which the Management is said to have relied, c
reached the Management only on 5th August, 1994 when the
services of the Respondent No.1 had already been terminated.
On account of the above, and in particular violation of Rule 15(6)
of the MEPS Rules, 1981, the Tribunal allowed the appeal and
set aside the order of termination with a direction on the
Appellant-Society to reinstate the Respondent No.1 in the same D
,,. ...,. post from 1st April, 1997 and to pay him his arrears of salary
from 1st August, 1994 till the date of re-joining his duties in the
school.
6. The said order of the School Tribunal was challenged E
by the Society before the Nagpur Bench of the Bombay High
Court by way of Writ Petition No.939of1997. Affirming the view
taken by the School Tribunal, the High Court dismissed the Writ
Petition against which the instant appeal has been filed.
7. Notwithstanding the findings of the School Tribunal, the F
High Court also went into the matter in some detail and had
occasion to consider the effect of the provisions of Section 5(3)
of the MEPS Act, Rules 14 and 15 and in particular sub-Rule
(6) of Rule 15 of the MEPS Rules, 1981. The High Court found
that the power to terminate the services of a Probationer was · G
available to the Management under sub-Section (3) of Section
5, but that sub-Rule (6) of Rule 15 had also to be taken into
consideration while exercising power under sub-Section (3) of
Section 5 of the MEPS Act.
H
~
1010 SUPREME COURT REPORTS [2008] 2 S.C.R.

-4..,..
A 8. Basing its decision on the manner in which the services
of Respondent No.1 had been terminated without a proper
assessment of his work during the probation period and also in
view of the fact that the Management did not, in fact, have any
occasion to consider the documents which were alleged to have
B been prepared by the Head Mistress of the School, the High·
Court affirmed the findings of the School Tribunal and dismissed
the Writ Petition.
9. On behalf of the Management of the Society, which is in
appeal before us, it has been urged that both the School Tribunal
c as well as the High Court had misconstrued the materials which
had been prepared by the Head Mistress and produced on
behalf of the School and had been relied upon by the
Management of the Appellant-Society to terminate the services
of the Respondent No.1. It was submitted that the Annual
D Confidential Report along with all its Annexures had been duly
shown to the Respondent No.1 on 7th July, 1994 which would J>- 4,,

be evident from his signature and the date against it on the form
itself. It was submitted that the Respondent No.1 had been duly
informed of his performance and the assessment made on the
E basis thereof which would clearly disprove the case of the
Respondent No.1 that no assessment had been made of his
performance during his period of probation or that he was not
informed of the same before his services were terminated. It
was urged that the requirement of Rules 14 and 15, and, in
F particular 15(6) of the MEPS Rules, had been strictly complied ,., .....
with, which enabled the Society, which was in Management of
the School; to take a decision to terminate the services of the
Respondent No.1. It was also submitted that both the Tribunal
and the High Court had erred in hplding otherwise and that if
the interpretation sought to be given both by the Tribun~I and
G
the High Court is to be accepted, it would result in the Rules
having an overriding effect over the statute itself which vested ~-

the authority with powers to terminate the services of a
Probationer if in its opinion the performance of the Probationer
during the period of probation was found to be unsatisfactory.
H
+--
PROGRESSIVE EDUCATION SOCIETY & ANR. v. 1011
RAJENDRA & ANR. [AlTAMAS KABIR, J]
-...# 10. Opposing the submissions made on behalf of the A
Appellant-Society, the learned counsel for both the Respondent
No.1 and the Respondent No.2 contended that no interference
was called for with the judgment both of the School Tribunal as
also the High Court on account of the suspicious nature of the
documents which had been produced before the Tribunal and B
the High Court on behalf of the School Management and in
..... particular the Annual Confidential Report for teaching staff, which
under sub-Rule (6) of Rule 15, the Management was under an
obligation to maintain. It was reiterated by learned counsel
appearing for the Respondent No.1 that the said Report itself, c
as has been discussed both by the School Tribunal as well as
the High Court, would go to show that the same had been
prepared only for the purposes of documentation and that the
same had not been considered by the Management when the
·· order of termination of the services of the Respondent No.1 was
D
passed. It was pointed out that the letter addressed by the Head
....
Mistress of the School to the Secretary of the Progressive
Education Society, the Appellant herein, enclosing a copy of
the Confidential Report, is dated 24th June, 1994, whereas the
Report itself is dated 4th July, 1994, which, in no uncertain terms,
established that the forwarding letter of the Head Mistress E
alleged to have been sent on 24th June, 1994 was an afterthought
or had been prepared when the Report itself was not ready. In
addition to the above, it was also pointed out that at the end of
the Assessment Form the signature of the Reviewing Authority
.). ~ did not indicate any date on which it had been signed, once F
again giving rise to the suspicion that the document had been
prepared only for the purposes of the record but not for the
purpose indicated in sub-Rule (6) of Rule 15 of MEPS Rules,
1981 read with sub-Section (3) of Section 5 of the MEPS Act.
G
11. It was lastly pointed out that the first page of the
)
Confidential Report bears a date on the right top hand corner,
namely, 6th August, 1994 which has been tried to be explained
as being the date of official dispatch of the records of the School
Management. It has been submitted that the said date could
H
1012 SUPREME COURT REPORTS [2008] 2 S.C.R.

A also indicate that the said document was not before the "--
Management of the School when t~e order of termination had
been passed earlier on 1st August, 1994.
12. Similar submissions were advanced on behalf of
Respondent No.2 and it was urged that neither the order of the
8 School Tribunal nor the order of the High Court warranted any
interference.
13. On a consideration of the submissions made on behalf
of the respective parties, the main issue which, in our view,
c requires determination in this appeal is whether the provisions
of Rules 14 and 15, and, in particular sub-Rule (6) of Rule 15 of
the MEPS Rules, 1981, ·would control the powers vested in the
Management of the School under Sub-Section (3) of Section 5
of the MEPS Act. The law with regard to termination of the
services of a Probationer is well established and it has been
0
repeatedly held that such a power lies with the Appointing
Authority which is at liberty to terminate the services of a
Prob~tioner if it finds the performance of the Probationer to be
unsatisfactory during the period of probation. The assessment
has to be made by the Appointing Authority itself and the
E satisfaction is that of the Appointing Authority as well. Unless a
stigma is attached to the termination or the Probationer is called
upon to show cause for any shortcoming which may
subsequently be the cause for termination of the Probationer's
service, the Management or the Appointing Authority is not
F required to give any explanation or reason for terminating the
services except informing him that his services have been found
to be unsatisfactory.
14. The facts of this case are a little different from the normal
G cases relating to probation and the termination of the services
of a Probationer in that the satisfaction required to be arrived at
under sub-Section (3) of Section 5 of the MEPS Act has to be · -(
read along with Rule 15 of the MEPS Rules, 1981 with particular
reference to sub-Rule (6) which provides that the performance
H of an employee appointed on. probation is to be objectively
:/

PROGRESSIVE EDUCATION SOCIETY & ANR. v. 1013
RAJENDRA & ANR. [AlTAMAS KABIR, J.)

assessed by the Head during the period of his probation and a A .
record of such assessment is to. be maintained. If the two
provisions are read together, it would mean that before taking
recourse to the powers vested under sub-Section (3) of Section
5of the MEPS Act, the performance of an employee appointed
on probation would have to be taken into consideration by the s
School Manage!T)ent before. tEifrninating hi~ se..Vi~e~. -~ : .·
15.Accordingly, while Rules 14 and 15 of the MEPS Rules/
1981 cannot override the provisions of sub-Section (3) of
Section 5 of the MEPS Act, it ~as to be said that the
requirements of sub-Rule (6) of Rule 15would be a factor which C
the School Management has to take into consideration while
exercising the powers.which it undoubtedly has and is.
recognised under sub:section (3). of Section 5 of the Act.
16. This brings 1 us to the next question regarding the ·.
0
sufficiency of the materials before the School Management while
piJrporting to pass the order of termination on 1st August, 1994.
As has been discussed, both by the School Tribunal and the
High Court, the Confidential Report which has been pcoduced
on behalf of the School Management does not inspire
confidence on account of the different dates which appear both E
on Part-I and Part-II of tile said Report. Part-I of the Self-
Assessment Form gives the particulars of the concerned
teacher and the remarks of the Reporting Authority, namely, the
Head Mistress of the Sch9ol. The date in the said Part is shown
as 4th July, 1994, whereas the date at the end of Part-II, which is F
the form of the Confidential Report giving details of the teacher's
performance, is dated 24th June, 1994, which appears to be in
line with the date given of the forwarding letter written by the
Head Mistress to the Secretary of the Society. To add.to the
confusion created by the different dates on the form, there is a G
third date which appears on Part-I of the Self-Assessment Form
which shows that the documents were presumably forwarded
to the Management of the School on 5th August, 1994, which is
a date which is prior to the date of termination of the services of
the Respondent No.1, namely, 1st August, 1994. · H
'.-~
1014 SUPREME COURT REPORTS , [2008] 2 S.C.R. ,:~

A 17. This merely goes to show that the said documents are
not above suspicion and that the requirements of Rule 15(6)
and Rule 14 had not been complied with prior to invocation by
the School Management of the powers under sub-Section (3)
of Section 5 of the MEPS Act.
B 18. In such circumstances, we are inclined to agree with
the views expressed by the Scho~I Tribunal as well as the High
Court and we see no grounds to interfere with the order
impugned in this appeal.
c 19. The appeal, therefore, stands rejected. There will be
no order as to costs.
N.J. Appeal dismissed.

·(