JUDGMENT Ravindra V. Ghuge, J. 1. By an order dated 05/09/2001, this petition was admitted. Rule was expedited. The appointment of respondent No. 4 made by the Management pursuant to the termination of the petitioner on the post which she had previously occupied, was made subject to the result of this petition. 2. The submissions of Mr. S.R. Barlinge, learned Advocate appearing on behalf of the petitioner are as under:- (a) The petitioner is educationally qualified to be appointed as an Assistant Teacher and the same is undisputed. (b) The first appointment order of the petitioner is dated 01/08/1991. (c) The said appointment order, in clause 2, indicates that she was appointed on probation for one academic year. (d) A second appointment order was issued to the petitioner, which is dated 15/06/1992. The same is indicated to be a continuing order of appointment. (e) By the second order, as well, she was appointed on probation by way of continuation with the earlier appointment order. However, probation period is not mentioned in clause 2 of the said order. (f) A third appointment order was issued to the petitioner, which is dated 10/06/1993 and which indicates that she is again appointed on probation for one academic year. (g) The petitioner, at the time of joining duties with respondent No.1 Management, in the respondent No.2 school, was called upon to sign certain blank papers since they were to be utilized for the purposes of her salary and approval. (h) By an application dated 25/04/1994, the petitioner appraised respondent No.3 Education Officer about her apprehension that the blank stamp papers are likely to be used to the prejudice of the petitioner and may be utilized to project that she has resigned from her employment. She, therefore, informed respondent No.3 that she had not resigned and in the event, any such document is placed before it, the same should not be accepted. (i) By communication dated 25/04/1994, respondent No.3 informed the Management that though the school is operated on 100% Grant Basis, the proposal of the petitioner for approval has not been submitted and instead a proposal of Mr. J.V. Gaikwad, respondent No.4 herein, has been forwarded. The Management was therefore directed to submit the proposal of the petitioner for approval, forthwith. (j) The respondent / Management declined to allow the petitioner to sign on the muster roll w.e.f. 23/04/1994. J.V. Gaikwad, respondent No.4 herein, has been forwarded. The Management was therefore directed to submit the proposal of the petitioner for approval, forthwith. (j) The respondent / Management declined to allow the petitioner to sign on the muster roll w.e.f. 23/04/1994. (k) She, therefore, preferred an Appeal No. 65 of 1994 before the School Tribunal at Aurangabad. (l) The entire case of the petitioner rests on the basis of having attained deemed permanency u/s 5(2) of The M.E.P.S. Act and that she was being kept away from employment, which amounts to termination. (m) The respondents filed their written statement in response to the appeal. (n) The respondent Management has contended in the written statement that they had received several complaints from the parents and students, indicating that the service of the petitioner was not satisfactory and was blemished. (o) The exposure of the reasons of the Management in its written statement indicate that the oral termination of the petitioner was on account of certain charges and the foundation of the oral termination was therefore allegations of misconduct. (p) The petitioner relied upon the judgment of the Apex Court in the case of Radhyeshyam Gupta vs. U.P. State Agro Industries Corporation Ltd. AIR 1999 SC 669 and Dipti Prakash Banerjee vs. Satvendra Nath Bose National Centre, AIR 1999 SC 983 . (q) If the case of the respondent was as regards resignation, the provisions of the M.E.P.S. Act, especially Section 7 and Rule 40 of The M.E.P.S. Rules 1981 were necessarily required to be followed. (r) Even if the contention of the respondents that the petitioner has resigned is to be accepted for the sake of assumption, the same does not stand scrutiny of Section 7 and Rule 40. (s) The petitioner was granted interim relief by the Tribunal by its interim order dated 10/05/1994, which continued till 05/07/2001. (t) The interim order so passed was not called in question by any of the respondents before any Court and the said order therefore had its full operation and was enforceable for the above said period. (u) The interim order passed by the Tribunal had not been complied with, in as much as, the petitioner was not paid the wages for the said period by the Management. (v) The impugned judgment of the Tribunal rests on a misconception that the petitioner was a temporary and had therefore no right to employment. (u) The interim order passed by the Tribunal had not been complied with, in as much as, the petitioner was not paid the wages for the said period by the Management. (v) The impugned judgment of the Tribunal rests on a misconception that the petitioner was a temporary and had therefore no right to employment. (w) The impugned order is unsustainable for the reason that the Tribunal, instead of testing the veracity of the statement of the Management as regards resignation, proceeded on the footing that since there was no oral termination on record and the petitioner had resigned, the appeal deserved to be dismissed. (x) Reliance is placed upon a reported judgment of this Court in the matter of Sayyed Maksood Ali Sayyed Roshid Ali vs. Uruje Urdu Education Society, Kalamb and another, 2011(4) Mh.L.J.952, to demonstrate that the story of resignation is unsustainable in Law. (y) It is prayed that the oral termination or the resignation, be set aside and the petitioner be reinstated in employment with continuity and salary for the entire period of unemployment. 3. Mr. V.V. Bhavthankar, learned Advocate appearing on behalf of respondent No.4 submits that he has no reason to go into the controversy between the Management and the petitioner. He has been appointed as an 'Assistant Teacher' with respondent No.2 School and is now a permanent employee. He has settled down in employment and therefore even if this writ petition is allowed and the petitioner is granted consequential reliefs, his appointment need not be interfered with. He has been appointed against a post reserved for the backward class and he belongs to the said caste. 4. Mr. S.G. Rudrawar, learned Advocate appearing on behalf of respondent Nos. 1 and 2 submits as under:- (a) The petitioner had voluntarily resigned on 21/04/1994. (b) The Executive Committee of the Management met on 25/04/1994 for considering the resignation letter submitted by the petitioner. (c) It was unanimously agreed that the said resignation should be accepted. (d) Accordingly, a resolution was passed on 25/04/1994, accepting the resignation with retrospective effect and the resignation was therefore made effective from 21/04/1994. (e) By a communication dated 26/04/1994, the petitioner was informed that her resignation has been accepted and she has been relieved from employment with effect from 21/04/1994. (d) Accordingly, a resolution was passed on 25/04/1994, accepting the resignation with retrospective effect and the resignation was therefore made effective from 21/04/1994. (e) By a communication dated 26/04/1994, the petitioner was informed that her resignation has been accepted and she has been relieved from employment with effect from 21/04/1994. (f) The acceptance letter dated 26/04/1994 was not served personally upon the petitioner, but was sent through an envelope by ordinary post. (g) The respondent Management does not have any acknowledgement to indicate that the petitioner has received the acceptance letter. (h) It was contended by the Management in its written statement, in paragraph no.4 that the petitioner was not in employment from 15/06/1992 and she was not issued with any continuation order by that competent authority of the Management. (i) The continuation letter, which the petitioner is in receipt of, was obtained in collusion with the Secretary Mr. V.L. Garad, who had issued the said letter ante dated (back dated). (j) Appeal filed by the petitioner was on a false ground of otherwise termination. (k) It is conceded that the petitioner also belongs to the same backward class to which respondent No.4 belongs to. (l) The petitioner has admitted before the Tribunal that respondent No.4 was working in her place. (m) Instead of meeting the case of the respondent of resignation, the petitioner did not choose to challenge the same. (n) The resignation has been submitted voluntarily without any force, or coercion exerted by the Management upon her. (o) The conclusions drawn by the Tribunal from para No.4 onwards are proper, appropriate and sustainable. (p) No relief needs to be granted to the petitioner and the petition be dismissed. 5. Before the Tribunal, undoubtedly the petitioner had come up with a case of oral termination. According to her, she has alleged oral termination from the date she was prevented from signing the attendance register and performing her duties. The appointment orders issued to the petitioner by the Management are indicated to have been issued under Rule 67.2 (b) of The Secondary School Code. All the 3 orders appear to be in continuation. Appointment on probation, needless to state, indicates that the appointment was on a clear and vacant post. 6. Section 5(2) of The M.E.P.S. Act reads as under: “5. All the 3 orders appear to be in continuation. Appointment on probation, needless to state, indicates that the appointment was on a clear and vacant post. 6. Section 5(2) of The M.E.P.S. Act reads as under: “5. Certain obligations of Management of private schools:- (2) Every person appointed to fill a permanent vacancy (except shikshan sevak) 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. [Provided that, every person appointed as shikshan sevak shall be on probation for a period of three years.] 7. It is, therefore, clear that Section 5(2) of the Act is a deeming provision. The appointment has to be on probation for a period of 2 years. On conclusion of the probation period of 2 years, the Law provides deemed confirmation. 8. In the instant case, the appointment orders are in continuation with each other. The second order is in fact a continuation order even as per the record of the respondent Management. As such, after conclusion of the academic year 1992-93, the petitioner had completed 2 years of probation despite the fact that each of these appointment orders had indicated the probation period to be of only 1 year. From this point of view, if the appointment was on probation for only one year as per the respondent Management, continuation of the employee after one year could also be a ground for claiming deemed permanency. Nevertheless, without going into this aspect, the fact that the petitioner worked continuously for 3 years and on probation, which is a clear position, renders the petitioner eligible to claim deemed status of permanency u/s 5(2) of The M.E.P.S. Act. 9. In litigation before any Court or Tribunal, the contentions of the rival parties are to be taken into account. The petitioner had come up before the Tribunal with the plea that she was orally kept out of employment. Record produced indicates that she was appointed for 3 consecutive years on probation. There was nothing before the Tribunal to establish that the petitioner was not in employment after the first appointment order and that the second order, which was in continuation to the first order, was neither given effect to, nor did the petitioner perform her duties. Record produced indicates that she was appointed for 3 consecutive years on probation. There was nothing before the Tribunal to establish that the petitioner was not in employment after the first appointment order and that the second order, which was in continuation to the first order, was neither given effect to, nor did the petitioner perform her duties. This issue, therefore, cannot be reopened before this Court. 10. In the factual matrix recorded above, while the Tribunal, tested the contention of the petitioner that she was orally terminated, it was the duty of the Tribunal to test the defence of the respondents as well. The impugned order, in its entirety, in my view leads to an impression that the Tribunal was so much carried away by the aspect of the oral termination, being denied by the respondent, that it proceeded on the premises that the petitioner had not called in question the resignation and therefore, was left with no case before the Tribunal. 11. In my view, the Tribunal has virtually abdicated its authority in not testing the case of the respondent on the ground of resignation. The Tribunal could not have avoided scrutinizing the case of the respondents, which it was obliged to do as a Court of competent jurisdiction. While testing the case of the respondents, had the Tribunal gone into the aspect of resignation of the petitioner, in my view, it would have arrived at the following conclusions:- (a) The entire resignation letter including the date, was a typed document. (b) The only ink used on the said document was for the purposes of the signature of the petitioner. (c) The petitioner, being a deemed permanent employee, was required under Rule 40 to give 3 months notice to the respondents while resigning. Even if it is presumed that she was a temporary employee, she had to give one calender month's notice. (d) In both these eventualities, if the respondent was to waive the notice period on its own accord, it was required to pay 3 months salary or one month salary to the petitioner. (e) Communication of acceptance of resignation is now Trite Law. (f) As per the records of the respondents, resignation dated 21/04/1994, even if presumed to be voluntary, was placed before the Executive Committee on 25/04/1994. The same was accepted with retrospective effect from 21/04/1994. (e) Communication of acceptance of resignation is now Trite Law. (f) As per the records of the respondents, resignation dated 21/04/1994, even if presumed to be voluntary, was placed before the Executive Committee on 25/04/1994. The same was accepted with retrospective effect from 21/04/1994. (g) There is no communication of the acceptance letter to the petitioner on record. 12. In this backdrop, if the case of the respondent is to be accepted, the same would have amounted to termination with retrospective effect and which stands prohibited in view of the judgment of this Court in the case of Asaram Raibhan Dhage vs. Executive Engineer and others, 1989 (II) CLR Bom. 331. (Coram : Justice Lentin and Justice Puranik). 13. Paragraph Nos. 1, 3 and 4 of the Asaram judgment (supra) read as under: “1. The services of an employee, be he permanent or temporary, cannot be terminated with retrospective effect. Such is the ratio of this judgment. 2…………………………….. 3. The petitioner's learned Counsel Miss Purohit is perfectly justified in making a grievance that it is unthinkable that an employee's services can be terminated with retrospective effect, as done in the present case. We join learned Counsel in her astonishment. For that matter, one of the conditions in the letter of appointment is that if the petitioner desired to resign he was liable to pay one month's salary or give one month's notice. It is therefore ironical that on the other hand, the petitioner's services were terminated with retrospective effect. 4. However, the respondents' learned Counsel Mr. Bhatkar ventures that the date of termination, namely March 1, 1986 in the letter of termination must be typographical error. This is an ipse dixit it is purely conjecture and speculative reasoning. Significantly enough, in the affidavit-in-reply, no such case of a typographical error is even faintly suggested. For that matter, despite the fact that in the petition it has been categorically stated in no uncertain terms that by this letter of termination, the petitioner's the services were terminated with retrospective effect from March 1, 1986, not even the whisper of denial is to be found in the affidavit-in-reply. Thus the myth of a typographical error stated across the Bar can safely be ruled out.” 14. The M.E.P.S. Act and Rules make it mandatory for the resignation to be written in the handwriting of the employee. Thus the myth of a typographical error stated across the Bar can safely be ruled out.” 14. The M.E.P.S. Act and Rules make it mandatory for the resignation to be written in the handwriting of the employee. This has been upheld by this Court in the Syed Maksood's case (supra). Needless to state, the law available and the view taken by this Court, are aimed at ensuring that an unscrupulous management does not venture into causing undue harassment to an employee under the pretext of resignation for which the Management could have utilized a blank paper bearing the signature of the employee. Since the law mandates that the resignation should be in the handwriting of the employee, inclusive of the date, the theory of resignation put forth by the respondent Management deserves to be rejected. 15. In the light of the above, the impugned judgment and order dated 05/07/2001 deserves to be quashed and set aside. This matter pertains to the year 2001 when the petition was admitted by this Court. The petitioner is 48 years old and practically out of employment for 20 years. She has 10 more years of service prior to attaining the age of superannuation. When I have come to the conclusion that the impugned order is unsustainable, the act of the respondents in claiming that the resignation has been submitted voluntarily, consequentially stands set aside. 16. The petitioner was granted interim relief on 10/05/1994, which continued for a period beyond 7 years. The same was neither challenged nor implemented. The petitioner has suffered rigours of litigation with unemployment. The salary for the said period is therefore awarded to her. 17. Since the theory of resignation of the Management is turned down in view of the law applicable, reinstatement in employment has to be ordered since the petitioner has still 10 more years prior to attaining age of superannuation. 18. The period between the date of the impugned judgment and disposal of this petition, has to be taken into account for awarding back wages to the petitioner. Nevertheless, since this Court, by its order dated 04/09/2001, while admitting the petition, had declined interim relief to the petitioner to the extent of her service or service benefits, the respondent Management may have a ground to justify refusal to reinstate the petitioner and obviously so because the appeal had been dismissed. Nevertheless, since this Court, by its order dated 04/09/2001, while admitting the petition, had declined interim relief to the petitioner to the extent of her service or service benefits, the respondent Management may have a ground to justify refusal to reinstate the petitioner and obviously so because the appeal had been dismissed. Nevertheless, a wrongful termination caused by the Management, cannot be countenanced under these circumstances. Therefore, I am awarding 50% of the back wages to the petitioner for the period from 05/07/2001 till the date of judgment of this Court. 19. So far as respondent No.4 is concerned, this Court, by its interim order dated 04/09/2001, had subjected the appointment of respondent No.4 to the result and outcome of this petition. Respondent No.4 has therefore carried the risk of continuing in employment during this entire period. I, therefore, leave it to the respondent Management to deal with the situation, in which respondent No.4 finds himself in. 20. In the light of the above, this petition is allowed. The impugned judgment and order of the School Tribunal dated 10/05/1994 is quashed and set aside. Consequentially, the oral termination of the petitioner as well as the theory of resignation put forth by the respondents, stands rejected and the petitioner be reinstated in employment as an Assistant Teacher on the post that she had held and which was reserved for the backward category, w.e.f. 23/04/1994. Needless to state, as observed above, respondents are directed to pay the back wages to the petitioner from the date of oral termination till 05/07/2001 and 50% of the back wages from 05/07/2001 till this date, within a period of 2 months. 21. Rule is accordingly made absolute.