JUDGMENT : 1. On 27th October, 2005, this Court ordered Rule returnable early and interim direction to continue the petitioner in the employment. 2. The petition is listed on board for orders in view of the direction of the Hon'ble Supreme Court that the Writ Petition be disposed of within three months from the date of receipt of its order. 3. Petition is, therefore, taken up for hearing forthwith by consent. 4. Heard. 5. Learned Advocate for the petitioner submits that:- [a] The petitioner was appointed as Assistant Teacher and In-charge Headmaster on July, 1996 on a clear vacancy, however, without an order of appointment. [b] The petitioner was then appointed as In-charge Headmaster by order dated 28th June, 1997. [c] The appointment of the petitioner as Assistant Teacher was approved by letter dated 8th July, 1998, for academic year 1996-97, i.e., for only one year. [d] Since the vacancy, on which petitioner was appointed, was of permanent appointment ought to have been probation for two years and temporary employee for one year nature, made on not as [e] The employer issued the order dated 3rd April, 1998 terminating petitioner's services with effect from 9th May, 1998. [f] The termination order does not disclose or reveal any reasons thereof. [g] Since the petitioner was liable to be and deemed to be on probation, in absence of communication of any adverse comments relating to his performance, his services could not have been terminated. [h] Having completed two years' service on deemed probation, without any complaints, the petitioner had gained the status of a permanent teacher. [i] Approval order dated 22nd March, 1999 [Annex.VII] reveals that the petitioner's appointment was approved even for that period without conditions, which proves the petitioner's plea that he was appointed on a clear vacancy. [j] After the petitioner filed an appeal aggrieved by termination, he was continued in employment due to interim order and said continuation of his services was also approved by the Education Officer by order dated 29th June, 1999 [Annex.VIII] from 21st June, 1999 till end of probation period. 6. After termination, the petitioner preferred appeal before School Tribunal. The Tribunal heard the appeal and found that:- [a] The appellant was liable to be treated as serving on probation. 6. After termination, the petitioner preferred appeal before School Tribunal. The Tribunal heard the appeal and found that:- [a] The appellant was liable to be treated as serving on probation. [b] The procedure prescribed in Section 5 [3] of the Maharashtra Employees of Private Schools [Conditions of Service] Regulation Act, 1977, applied to petitioner's case, and by giving notice of one month, it was done. [c] The termination, in question, is termed as 'simplicitor' and power to issue such order to a probationer was very well available. [d] There was no illegality in the said order. The Tribunal, therefore, held that the appeal had no merit and dismissed the same. 7. In this petition, petitioner's sole contention, as is spelt out from oral submissions and written notes tendered in the Court, is that :- [a] The petitioner's appointment being on a clear vacancy, the Management was under obligation in law to appoint on probation a person working against a clear vacancy. [b] Though the petitioner was appointed on year to year basis, said continuation of services is liable to be read and construed to be on probation, and probationer's services can be terminated only on unsatisfactory performance, whereas the order of termination does not reveal any such ground. [c] During the period of two years, the petitioner was never communicated any deficiencies or shortcomings in his work. [d] The Management cannot, therefore, terminate the services in such a manner, i.e., without assigning any reason and without recording dissatisfaction. 8. As regards his performance during two years, petitioner has averred in para no.2 of appeal as follows:- “2. .....During the period of service, the work and behaviour of the appellant was good and satisfactory and the appellant rendered the services against the clear and permanent post and as per Section 5 of the Maharashtra Employees of Private Schools [Conditions of Service] Regulation Act, 1977, the appellant is deemed confirmed employee. The appellant has got the document proof to prove his services during the relevant period.” [quoted from page 19 of the Writ Petition paper-book] 9. The appellant has got the document proof to prove his services during the relevant period.” [quoted from page 19 of the Writ Petition paper-book] 9. Grounds raised in Appeal Memo in which he has challenged the termination read as follows:- “[A] The impugned notice-cum-order of termination of the appellant is patently illegal, in as much as, the appellant is deemed confirmed employee whose services cannot be terminated, without charge-sheet and having recourse to the procedure of enquiry as per Rules 36 and 37 of the Rules of 1981. [B] The impugned order of termination of the appellant is perverse, malafide and vindictive and it is aimed at revenge for making the complaint. [C] There is no reason much less valid one to terminate the services of the appellant and, therefore, the impugned order of termination of the appellant is illegal. [D] The impugned order of termination of the appellant is highhanded in colourable exercise of the powers of the employer and against the principles of natural justice. [E] The impugned order of termination of the appellant is in fact improper, unjustified, perverse, malafide and against all the provisions of the relevant Act and the Rules and hence the impugned order of termination needs to be quashed and set aside in the interest of natural justice,hence this appeal.” [quoted from page 20 of the Writ Petition paper-book] 10. Learned Advocate for the petitioner has placed reliance on following reported judgments, to substantiate his contention:- [a] Narayan s/o Baliram Patil Vs. Presiding Officer, School Tribunal, Aurangabad & ors. [2005 (3) Mh. L.J. 276], [b] Shikshan Prasarak Mandal, Wani Vs. Presiding Officer, School Tribunal, Amravati & another [2005 (4) Mh. L.J. 485], [c] Raramchandar Ramadhar Yadav. Vs. Hyderabad [Sind] National Collegiate Board & another [2006 (2) Mh. L.J. 530], [d] Nilambari Dinkar Pawar Vs. Shikshan Prasarak Sanstha & ors. [2007 (3) Mh. L.J. 822], [e] President, Mahila Mandal, Sinnar & another Vs. Sunita Bansidhar Patole [2007 (2) Mh. L.J. 105], [f] Hindi Vidya Bhavan, Mumbai & ors. Vs. PO, School Tribunal, Mumbai & ors. [2007 (6) Mh. L.J. 563], [g] St. Ulai High School & another Vs. Devendraprasad Jagannath Singh & another [2007 (1) Mh. L.J. 597], [h] New Education Institute, Nasik & ors. Vs. Mahejabin Ashfak Ahmed Shaikh & ors. [2008 (1) Mh. L.J. 69], and [i] Principal, B.K.M. High School, Mumbai & another Vs. Keshab Achari [2008 (1) Mh. L.J. 438]. [2007 (6) Mh. L.J. 563], [g] St. Ulai High School & another Vs. Devendraprasad Jagannath Singh & another [2007 (1) Mh. L.J. 597], [h] New Education Institute, Nasik & ors. Vs. Mahejabin Ashfak Ahmed Shaikh & ors. [2008 (1) Mh. L.J. 69], and [i] Principal, B.K.M. High School, Mumbai & another Vs. Keshab Achari [2008 (1) Mh. L.J. 438]. 11. From perusal of above judgments, it is seen that the Judgment at Serial Nos. [a], [d], [g] and [i] are not directly on the point which the petitioner is urging. Other judgments are relied upon to argue that:- [a] when the vacancy is permanent, the text and format of order of appointment will be insignificant. [b] approval is not a matter decisive of nature of vacancy. And, [c] the Management has a duty to prove that vacancy is not of a permanent nature, if it so urges. 12. Considering the fact that the petitioner was appointed without specifying the nature of post on which he was appointed, and that the employer has not very seriously contested this issue, the finding of School Tribunal that the petitioner was liable to be treated on probation need not be scrutinized. 13. In these premises, the case has to proceed on the foundation that petitioner's services were at the disposal of the Management as a probationer though not so specified in the order of appointment. 14. On perusal of scheme as emerging from Section 5 [2] of the Act and Rules 14 and 15 of the Maharashtra Employees of Private Schools [Conditions of Service] Rules, 1981, and Section 5 [3] of the Act, it is clear that bare fact of successive two years' tenure of service as a probationer or a deemed probationer will not ipso facto acquire or confer upon an employee the status of being confirmed, or status of a deemed permanent employee. 'Satisfactory completion' of probation is a sine qua non for getting the status of permanency. 15. The Management has to do objective assessment of performance, and by a conscious and deliberate action, record the satisfactory completion of two years of probation by employee, or otherwise. 16. Appointment of an employee in the third year successively irrespective of any act of recording dissatisfaction or satisfaction and in an unqualified manner would render an inference of satisfactory completion of probation or speak of satisfaction, may be in an indirect manner. 17. 16. Appointment of an employee in the third year successively irrespective of any act of recording dissatisfaction or satisfaction and in an unqualified manner would render an inference of satisfactory completion of probation or speak of satisfaction, may be in an indirect manner. 17. Therefore, in absence of express order of continuation of services of an employee for the succeeding year, i.e., third year in a permanent vacancy, the fiction of satisfactory completion of probation will not operate. 18. It seems that the petitioner has chosen to be content with his plea of fiction of deemed permanency by bare fact of completion of period of service for two years put in by him. 19. The question then arises is as to whether upon completion of period of two years as a probationer, is it imperative for the Management to record 'unsatisfactory performance' before termination?, and to disclose accordingly in the termination letter/order. 4. 20. At this stage, it is necessary to consider as to what shall be the collective effect of Sub-Sections [2], [3] and [4] of Section 5 of the Act and Rules 14 and 15 of the MEPS Rules, 1981. 21. Rule 14 contemplates that in the beginning of each term, the teacher [now it will comprehend Head as well] shall prepare a plan of his academic programme at the end of each academic year, prepare a report thereof and submit it to the Head. 22. In the present case, the Head himself being the person involved, he will have to submit his report to the Secretary or the Chairman. The employee has a right as well as duty to submit a report of self-assessment in the form in Schedule-G. 23. Rule 15 refers to confidential report to be recorded by competent supervising authority upon the self-assessment furnished by employee in Form-G. 24. Sub-rule [3] of Rule 15 requires that adverse confidential remarks, if any, be communicated to the employee concerned prior to end of August every year. In view that August would fall just two months after commencement of academic year, the month 'August' would mean one falling in academic year following the academic year under remark. 25. Sub-rule [4] of Rule 15 provides for a procedure of representation by employee against adverse remarks. 26. In view that August would fall just two months after commencement of academic year, the month 'August' would mean one falling in academic year following the academic year under remark. 25. Sub-rule [4] of Rule 15 provides for a procedure of representation by employee against adverse remarks. 26. Sub-rule [5] of Rule 15 creates a fiction that, the failure of Management to write and maintain Confidential Reports and communicate adverse remarks to the employee within the prescribed period will have the effect that work of the employee was satisfactory during the period under report. 27. It follows from Sub-rule [6] of Rule 15 that in case of a probationer, the adversities, if any, to be communicated, would be communicated in August in the year of completion of probation, i.e., after two years as far as reports of second year are concerned. This fiction of satisfactory performance by itself turns out to be redundant, since if the services are not satisfactory and power to record satisfaction is to be exercised before the completion of period of probation, the communication of adverse remarks, if any, afterwards does not have any bearing. 28. Sub-rule [6] of Rule 15, therefore, will have to be read independently and as a scheme or mechanism of recording satisfactoriness etc. of performance of probationer. 29. The self-assessment, if any, submitted by the employee under Rule 14 may, however, be the foundation, with which the Management may agree or disagree and may form its objective opinion. 30. Though petitioner has averred that he has documents to prove i.e., service record, he has not brought anything on record. It is not even his case that he has submitted a self-assessment report. 31. It is even not the case of petitioner that in the quarterly performance record under Rules 14 and 15 of the Maharashtra Employees of Private Schools [Conditions of Service] Rules, 1981, his performance was recorded as good or satisfactory. 32. The petitioner has not taken any steps to summon or otherwise seek to produce any record from the Management. 33. The aspect of the Confidential Reports being adverse will not have a direct bearing in case of a probationer, as the Management has to make an objective assessment. In case of a probationer, the performance may be such that anything worth adverse communication may not exist, however, sum effect of a probationer's services could still not be satisfactory. 33. The aspect of the Confidential Reports being adverse will not have a direct bearing in case of a probationer, as the Management has to make an objective assessment. In case of a probationer, the performance may be such that anything worth adverse communication may not exist, however, sum effect of a probationer's services could still not be satisfactory. 34. It is in this background the absence of adverse communication, or otherwise, could be one but not only factor of decisive nature in the matter of act of Management in recording satisfactory performance, or otherwise, of any probationer. 35. Thus, the “satisfactory performance” has to be a sum effect of employee's attendance, performance, behaviour etc. collectively. Irrespective of whether the employee concerned has been communicated any deficiencies or any adversities in relation to performance of services, it would be quite permissible and within the powers of management to dispense with his services if on overall assessment, Management finds that the employee's performance is not satisfactory. 36. The requirement of unsatisfactory services referred to in Sub-section [3] of Section 5 of the Act is a matter of satisfaction of the Management and law does not require that order of termination should spell out said unsatisfactoriness and the factors or grounds leading to such conclusion. 37. The aims and objects leading to enactment of the Act were to bring stability in the administration of the school, give job security and to regulate the service conditions, however, its intention is not to take away power of the management which too inherently exist while hiring, retaining or dispensing with services of a probationer. 38. The discretion of the Management as to satisfaction has to be respected as absolute, unless exercised so grossly in arbitrary and illegal manner so as to render the termination stigmatic. Once an employee becomes permanent, the Management's action thereafter is brought under the control and regulation done under the rules, and thereafter the Management cannot deal with the services of the employee with the ancient rule of governing the relations between master and servant, the rule of hire and fire ceases to apply. 39. It appears that the Act or Rules have nowhere provided or prescribed that the order of termination of service of a probationer should consist of a clause that recording unsatisfactoriness should be disclosed therein. 39. It appears that the Act or Rules have nowhere provided or prescribed that the order of termination of service of a probationer should consist of a clause that recording unsatisfactoriness should be disclosed therein. This absence appears to be a conscious omission, probably keeping in view that it would adversely affect the employee's career. There would always be a distinction between dispensation of services at the end of probation with one month's notice and dispensation of a probationer with a sort of certification that he did not perform satisfactorily. 40. The termination at the end of probation or during the period of probation is seen to be only prerogative left to the Management. Had it been that law-makers wanted to make reasons of “unsatisfactoriness of performance” justiciable, law would never have omitted to prescribe that termination order of a probationer should incorporate details thereof. It has to be noted that no such prescription is made. 41. End of two years is the only occasion when the Management has absolute right to choose either to continue the employee or to dispense with his services. This right has to be accepted to be absolute may be in fit cases, and can be brought under judicial scrutiny as to observance of mandatory provisions of law; lest the satisfactoriness of performance as a probationer, which is a matter of absolute executive decision of the Management will be brought into scrutiny in an appeal, which is not seen to be the intention of Legislature while enacting the Act of 1977. 42. Keeping these aspects in view, failure of the Management to record in the order of termination that performance is not satisfactory would not vitiate the termination. 43. In these premises, in case of a person putting in two years' service and dispensing with his services without a stigma, but taking recourse to Sub-section [3] of Section 5 leaves extremely limited scope for judicial review of employer's right of dispensing with probationer's services. 44. In the result, this Court holds that the order of termination was rightly upheld by the School Tribunal. 45. The Writ Petition does not deserve any interference. Rule is discharged. In the circumstances, parties shall bear own costs.