JUDGMENT : (Through : Video Conferencing) Heard, learned counsel for the parties. 2. The instant appeal has been preferred against the judgment dated 16.06.2017 passed in Case No.14 of 2016 (JET) whereby the termination order dated 28.02.2014 passed by Principal of School as well as the appellant order passed by the President Managing Committee dated 16.01.2016 have been set aside by the learned Jharkhand Education Tribunal. 3. Learned counsel for the appellant/respondent-School Management, Mr. Rahul Kuamr has assailed the impugned judgment on various counts but primarily on the locus of the respondent/petitioner, Smt. Jyoti Singh and has submitted that respondent, Smt. Jyoti Singh was a probationary appointee whose appointment was made on 13.08.2009 vide appointment letter DAV/2009-149 dated 13.08.2009 by the then District Education Officer, Ranchi-cum-receiver. The said appointment was not legal as receiver has to discharge day to day work and has no authority to appoint. 4. Learned counsel for the appellant has submitted that service of the petitioner was not satisfactory to the management, as such, her service has never been confirmed and she remained in the status of probationer, as such, the termination order issued by the management, which is not stigmatic has been passed after overall assessment of performance of the teacher/librarian, Smt. Jyoti Singh which does not require any interference by this Court and the same has not been appreciated by the learned Jharkhand Education Tribunal in its correct perspective with regard to her status as a probationer. 5. Learned counsel for the appellant in support of his submission, has relied upon a judgment passed by the Hon'ble Apex Court in the case of Wasim Beg Vs. State of U.P. and Ors., reported in (1998) 3 SCC 321 at Paras 16 and 17 which are reproduced hereunder :- “16. However, even when the Rules prescribe a maximum period of probation, if there is a further provision in the Rules for continuation of such probation beyond the maximum period, the courts have made an exception and said that there will be no deemed confirmation in such cases and the probation period will be deemed to be extended. In this category of cases we can place Samsher Singh v. State of Punjab & Anr. In this category of cases we can place Samsher Singh v. State of Punjab & Anr. (1974 [2] SCC 831) which was the decision of a Bench of seven judges where the principle of probation not going beyond the maximum period fixed was reiterated but on the basis of the Rules which were before the Court, this Court said that the probation was deemed to have been extended. A similar view was taken in the case of Municipal Corporation, Raipur v. Ashok Kumar Misra. In Satya Narayan Athya v. High Court of Madhya Pradesh although the Rules prescribed that the probationary period should not exceed two years, and an order of confirmation was also necessary, the termination order was issued within the extended period of probation. Hence the termination was upheld. 17. The other line of cases deals with Rules where there is no maximum period prescribed for probation and either there is a Rule providing for extension of probation or there is a Rule which requires a specific act, on the part of the employer (either by issuing an order of confirmation or any similar act) which would result in confirmation of the employee. In these cases unless there is such an order of confirmation, the period of probation would continue and there would be no deemed confirmation at the end of the prescribed probationary period.” 6. Learned counsel for the appellant has submitted that the case of the teacher is squarely covered with the elaboration made in Para-17 and has also placed the rule of the school which has been brought on record as Annexure-29. Learned counsel has submitted that appointment letter postulates certain conditions for confirmation. The concept of deemed confirmation is not there. As such, in view of the para-17 of the judgment of Wasim Beg (supra), there is rule provided for extension of probation or there is rule which requires a specific act on the part of the employer. Learned counsel for the appellant has further submitted that initially the appointment was made for a period of six months as a probationer, but no letter for confirmation of service has been issued by the Management, as such, in view of Rule of the School at Annexure-29, the petitioner-Smt. Jyoti Singh continued on the post as probationer, as such, the impugned order of termination which was not a stigmatic is not bad in law. Learned counsel for the appellant in support of his submission has relied upon the judgment of Wasim Beg (supra) in which reliance has been placed upon the judgment passed by the Full Bench in the case of State of Punjab vs. Dharam Singh, reported in (1968) 3 SCR 1 = AIR 1968 SC 1210 . Learned counsel for the appellant in support of his submission has further relied upon the judgment rendered in the case of Rajasthan High Court vs. Ved Priya and Anr., reported in 2020 SCC Online SC 337 at Para 18 and 19 which are produced hereunder :- “18. Furthermore, there is a subtle, yet fundamental, difference between termination of a probationer and that of a confirmed employee. Although it is undisputed that the State cannot act arbitrarily in either case, yet there has to be a difference in judicial approach between the two. Whereas in the case of a confirmed employee the scope of judicial interference would be more expansive given the protection under Article 311 of the Constitution or the Service Rules but such may not be true in the case of probationers who are denuded of such protection(s) while working on trial basis. 19. Probationers have no indefeasible right to continue in employment until confirmed, and they can be relieved by the competent authority if found unsuitable. Its only in a very limited category of cases that such probationers can seek protection under the principles of natural justice, say when they are ‘removed’ in a manner which prejudices their future prospects in alternate fields or casts aspersions on their character or violates their constitutional rights. In such cases of ‘stigmatic’ removal only that a reasonable opportunity of hearing is sinequanon. Way back in Parshotam Lal Dhingra v. Union of India, a Constitution Bench opined that: "28.... In short, if the termination of service is founded on the right flowing from contract or the service rules then, prima facie, the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted. Way back in Parshotam Lal Dhingra v. Union of India, a Constitution Bench opined that: "28.... In short, if the termination of service is founded on the right flowing from contract or the service rules then, prima facie, the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted. But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with." 7. Learned counsel for the appellant has further submitted that the probationer has no indefeasible right to continue in employment until confirmed and they can be relieved by the competent authority, if found unsuitable. In the present case since the termination order is not a stigmatic removal, as such, no prejudice has been caused to the teacher/respondent, Smt. Jyoti Singh and accordingly prayed that this Court may not interfere with the termination order rather set aside the judgment passed by the learned Jharkhand Education Tribunal impugned herein. 8. Learned counsel for the appellant in support of his submission has further relied upon the judgment rendered in the case of Khazia Mohammad Muzammil vs. The State of Karnataka & Anr., in Civil Appeal No.596 of 2007 at Para-16 which has been reproduced hereunder :- “16. Now let us examine the other view where the Courts have declined to accept the contention that the employees were entitled to automatic confirmation after expiry of the probation period. In the case of High Court of Madhya Pradesh vs. Satya Narayan Jhavar [ (2001) 7 SCC 161 ] a three Judge Bench of this Court reiterated the three line of cases while referring to Rule 24(1) which provided maximum period of probation, examined the question of confirmation of such a probationer depending upon his fitness for such confirmation and his passing of the departmental examination by the higher standards. Thus declined to accept the principle of automatic or deemed confirmation the Court held as under: "11. Thus declined to accept the principle of automatic or deemed confirmation the Court held as under: "11. The question of deemed confirmation in service jurisprudence, which is dependent upon the language of the relevant service rules, has been the subject-matter of consideration before this Court, times without number in various decisions and there are three lines of cases on this point. One line of cases is where in the service rules or in the letter of appointment a period of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period of probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such cases there is no bar against termination at any point of time after expiry of the period of probation. The other line of cases is that where while there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation. The inference in such cases is that the officer concerned is deemed to have been confirmed upon expiry of the maximum period of probation in case before its expiry the order of termination has not been passed. The last line of cases is where, though under the rules maximum period of probation is prescribed, but the same requires a specific act on the part of the employer by issuing an order of confirmation and of passing a test for the purposes of confirmation. In such cases, even if the maximum period of probation has expired and neither any order of confirmation has been passed nor has the person concerned passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired.” 9. Learned counsel for the appellant has submitted that the Hon'ble Apex Court has considered that it is true and well-settled that the order of confirmation is a positive act on the part of the Management, which the employer is required to pass in accordance with rule governing the question of confirmation subject to finding that a probationer is in fact fit for confirmation. Learned counsel for the appellant has further submitted that in absence of any such letter or invoking of positive act by the Management, the status of respondent- Smt. Jyoti Singh remained as Probationer. 10. Learned counsel for the appellant in support of his submission has further relied upon the judgment rendered in the case of State of Punjab and Ors. vs. Sukhwinder Singh, reported in (2005) 5 SCC 569 at para 19 which is reproduced hereunder :- 19. It must be borne in mind that no employee whether a probationer or temporary will be discharged or reverted, arbitrarily, without any rhyme or reason. Where a superior officer, in order to satisfy himself whether the employee concerned should be continued in service or not makes inquiries for this purpose, it would be wrong to hold that the inquiry which was held, was really intended for the purpose of imposing punishment. If in every case where some kind of fact finding inquiry is made, wherein the employee is either given an opportunity to explain or the inquiry is held behind his back, it is held that the order of discharge or termination from service is punitive in nature, even a bona fide attempt by the superior officer to decide whether the employee concerned should be retained in service or not would run the risk of being dubbed as an order of punishment. The decision to discharge a probationer during the period of probation or the order to terminate the service of a temporary employee is taken by the appointing authority or administrative heads of various departments, who are not judicially trained people. The superior authorities of the departments have to take work from an employee and they are the best people to judge whether an employee should be continued in service and made a permanent employee or not having regard to his performance, conduct and overall suitability for the job. As mentioned earlier a probationer is on test and a temporary employee has no right to the post. As mentioned earlier a probationer is on test and a temporary employee has no right to the post. If mere holding of an inquiry to ascertain the relevant facts for arriving at a decision on objective considerations whether to continue the employee in service or to make him permanent is treated as an inquiry "for the purpose of imposing punishment" and an order of discharge or termination of service as a result thereof "punitive in character", the fundamental difference between a probationer or a temporary employee and a permanent employee would be completely obliterated, which would be wholly wrong.” And emphasized that the probationer is on test and a temporary employee has no right to the post if his/her services are not found satisfactory by the employer, as such, the impugned order of termination does not require any interference which has been wrongly set aside by the learned Jharkhand Education Tribunal. As such, this Court may set aside the impugned order passed by the Jharkhand Education Tribunal by allowing this appeal. 11. Learned counsel for the appellant has tried to satisfy this Court that in a proceeding dated 16.11.2013 which has been brought on record as Annexure-25, it has been decided by the Management Committee that work of the petitioner/respondent-Smt. Jyoti Singh is not satisfactory overall nor conducive to the environment of the school and for betterment of the students, they have decided to remove her. The proceeding was signed by the President on 31.05.2014, on the very next meeting of the Managing Committee, as such, there is no illegality in two dates being on the same document which has been brought on record as Annexure-25, as such, this Court may consider the same and uphold the termination order by setting aside the impugned judgment passed by the learned Jharkhand Education Tribunal. Learned counsel for the appellant has further submitted that learned Tribunal has not only committed error in appreciating the facts rather became generous in granting 50% backwages for the period when the petitioner has been terminated till she is reinstated along with simple interest @ 6% though petitioner-Smt. Jyoti Singh was gainfully employed during the said period, as such, granting 50% backwages with simple interest @6% is too harsh for Management of D.A.V. Public School, which basically runs for imparting education for betterment of country and not for profit by Arya Samaj society. Learned counsel for the appellant has further submitted that there was no such pleading on the part of the petitioner/respondent, Smt. Jyoti Singh, as such, relief has been granted beyond the pleading. 12. Learned counsel, Mr. C. Mukherjee appearing for the respondent-Smt. Jyoti Singh has vehemently argued the case and submitted that petitioner was never employed in the school before 13.08.2009 as submitted by the appellant is not true rather fact of the case is different which shows conduct of the management and has relied upon the document which has been brought on record as Annexure-1 vide Letter No.DAV/2003-156, dated 15.07.2003, issued by the President, D.A.V. School whereby the petitioner was appointed as ad-hoc Computer Teacher. She gave her joining which was accepted and thereafter because of vacancy arose in the Library as the then Librarian left the job, the petitioner was deputed on the post of Librarian as issued by the then Principal of D.A.V. School, Dhurwa, Ranchi on 07.12.2008. In the meantime, an advertisement was issued on 02.12.2008 in “Prabhat Khabar”, when the District Education Officer, Ranchi was appointed as receiver. Pursuant to the said publication, several persons including the petitioner have applied. The call letter was issued on 12.01.2009 vide Letter No. DAV 2009/07 and the interview was held on 30.01.2009. Nine candidates faced Interview and a cross-chart of all the candidates was prepared which has been brought on record as Annexure-5 and as per the suitability of the petitioner, the Committee selected the petitioner on the Post of Librarian and had given appointment in the School, petitioner was given appointment vide letter No.DAV/2009-149 dated 13.08.2009 with condition No.2 that she shall be appointed on probation for six months and the petitioner has given her joining on 17.08.2009 which was accepted by the Principal and continued to work, but no formal letter of confirmation was issued. Prior to this petitioner has rendered service in the said school since 2003. The petitioner continued to work even after withdrawal of receiver and handing-over the management of the school by the Commissioner on 20.01.2010 which shall be apparent from letter issued by Sub-Divisional Officer, Ranchi which has been brought on record as Annexure-7. 13. Prior to this petitioner has rendered service in the said school since 2003. The petitioner continued to work even after withdrawal of receiver and handing-over the management of the school by the Commissioner on 20.01.2010 which shall be apparent from letter issued by Sub-Divisional Officer, Ranchi which has been brought on record as Annexure-7. 13. Learned counsel for the respondent has submitted that she continued to work from 17.08.2009 along with several other persons, who have been appointed by the said receiver and they are continuing even today, as such, petitioner filed an application for grant of increment, which was the root cause of dispute as management was exploiting the teachers at their hand. The coercive measures have been started against the petitioner as she filed an application before the State Women Commission, Jharkhand, which was registered as Case No.302 of 2013 and after appearance of the management, the said case was disposed of on 25.02.2014. After few days only on 28.02.2014, in a haste, the management has taken coercive steps by issuing termination letter but in the said termination letter management has not whispered that petitioner-respondent, Smt. Jyoti Singh was probationer nor given any specific reason rather all the documents have been manufactured subsequently when the case was filed by Smt. Jyoti Singh against order of termination before the Jharkhand Education Tribunal and conduct of the management will show that the management was not fair in disposing the appeal and not fair in contesting said case before the Jharkhand Education Tribunal rather the documents which have never been served upon the teacher, Smt. Jyoti Singh have been made one of the basis for removal, as such, this Court may consider the same and also take note of show-cause issued to the petitioner on 22.05.2013 and its reply dated 03.06.2013 and thereafter nothing has been done by the management rather only after disposal of the case from the Jharkhand State Women Commission on 25.02.2014, the coercive steps have been taken on 28.02.2014 on flimsy grounds. 14. 14. Learned counsel for the respondent has further submitted that petitioner cannot be termed to be a probationer when she was associated with the school since 2003 and re-appointed on the post of Librarian in the year, 2009 along with several other persons, who are continuing in the service and only the petitioner has been removed on 28.02.2014, as such, petitioner has moved before the Jharkhand State Women Commission for redressal of her grievances. 15. Heard, learned counsel for the parties, perused the materials brought on record including the impugned order. It appears that the detail order has been passed by the Jharkhand Education Tribunal. It further appears that learned Tribunal has referred in para 25 of the impugned judgment, which is quoted hereunder:- “25. We have gone through the record and we found no reply by the respondents to para 46 of her petition. It is strange that the hearing on appeal was fixed for 18.01.2016 but the order by the President of the Managing Committee has been passed on 16.01.2016 itself. The Tribunal has, as stated earlier, clearly directed the Appellate Authority that the petitioner/appellant will be given an opportunity of being heard but from the above stated facts, it is evident that the appellant/petitioner was not heard and appeal dismissal order was passed behind her back, which is not only violation of the order dated 29.07.2015 of the Tribunal but against the Principles of Natural Justice as well. Therefore the appeal dismissal order is set aside.” 16. It is strange that the hearing of appeal was fixed for 18.01.2016 but the order by the President of the Managing committee has been passed on 16.01.2016 itself. Apart from this proceeding book of the meeting dated 16.11.2013 also shows two dates of signature i.e. 16.11.2013 by the Secretary and 31.05.2014 by the President. The submissions, which have been advanced by the learned counsel for the appellant is not acceptable to this Court for two reasons:- (i) A proceeding which has not been signed by all the members of the committee cannot be made basis for the issuance of letter of termination. (ii) This shows that if the argument of the learned counsel for the appellant is accepted then for six months the management is not acting upon the said proceeding. (ii) This shows that if the argument of the learned counsel for the appellant is accepted then for six months the management is not acting upon the said proceeding. As per learned counsel for the respondent-Smt. Jyoti Singh proceeding book is forged, fabricated and created documents by the school to defend their case before the Jharkhand Education Tribunal, as such, serious infirmities have cropped up. 17. This Court has also found that appeal remained pending for a long time before the appellate authority and when the Execution JET Case No.10 of 2015 preferred by Smt. Jyoti Singh then only the appellant produced the final order before the Jharkhand Education Tribunal on 30.03.2016 showing signature of the President on 16.01.2016 though date of hearing was fixed on 18.01.2016. 18. Under the aforesaid circumstances, the stand taken by the school as submitted by the learned counsel for the appellant that it is a non-profitable school run by Arya Samaj is not appreciated by this Court rather it appears that, some of the persons of the management committee are trying to dupe the court of law on the basis of such documents which are ante-dated, forged and fabricated. 19. This Court deprecates the said act of the school. From perusal of the impugned judgment relied by the learned counsel for the appellant, it is true that a probationer has no right to continue in service if his/her services is unsatisfactory to the employer, but the judgments which have been relied upon by the learned counsel for the appellant as reported in Wasim Beg (Supra) para 17 itself says that there is rule providing for extension of probation or there is rule, which requires a specific act on the part of the employer but non-issuance of such letter for infinite period will not create the status of teacher to the probationer, this Court is not satisfied with the submission made by the learned counsel for the appellant with regard to the status of the petitioner as probationer in view of the judgment passed in Wasim Beg (Supra). So far the judgment relied upon by the learned counsel for the appellant in the case of Ved Priya (Supra), this Court has perused the aforesaid judgment and found that the status of the petitioner/respondent-Smt. Jyoti Singh has not been shown/addressed as probationer in the impugned order of termination. So far the judgment relied upon by the learned counsel for the appellant in the case of Ved Priya (Supra), this Court has perused the aforesaid judgment and found that the status of the petitioner/respondent-Smt. Jyoti Singh has not been shown/addressed as probationer in the impugned order of termination. Apart from this the proceeding book of the meeting dated 16.11.2013 has never been made basis for issuance of termination letter rather termination letter refers two letters dated 18.12.2013 and 07.01.2014. As per learned counsel for the respondent-teacher, the letter dated 07.01.2014 has never been served upon her. 20. This Court is of the opinion that if the proceeding dated 16.11.2013 is to be relied, then mentioning of letters dated 18.12.2013 and 07.01.2014 in the letter of termination is unnecessary, which compels this Court to think, discrepancy in the date of signature of Secretary and President in the proceeding book dated 16.11.2013 where the President has put signature on 31.05.2014, compels this Court to hold that termination was never on the basis of the proceeding dated 16.11.2013. Had it been so then termination order ought to have mentioned the same i.e. proceeding dated 16.11.2013 rather termination order is based upon the letter dated 18.12.2013 and 07.01.2014. 21. Under the aforesaid circumstances, this Court is not satisfied to consider the status of petitioner/teacher, Smt. Jyoti Singh to be probationer in view of the judgment passed by the Hon'ble Apex Court in the case of Khazia Mohammed Muzammil (Supra). Rather Management has never issued letter regarding extension of probation period and inaction on the part of the Management cannot act as Sword for employee. An employer cannot take benefit of his own latches. 22. The Hon'ble Apex Court has taken the view that it is well settled that an order of confirmation is a positive act on the part of the employer, which the employer is required to pass in accordance with the rules governing the question of confirmation, subject to finding that the probationer is in fact fit for confirmation. 22. The Hon'ble Apex Court has taken the view that it is well settled that an order of confirmation is a positive act on the part of the employer, which the employer is required to pass in accordance with the rules governing the question of confirmation, subject to finding that the probationer is in fact fit for confirmation. In absence of any letter of confirmation or extension or mentioning of such word in the impugned order of termination, the provision cannot act adverse to the interest of teacher and as this act has been considered by the Hon'ble Apex Court to be a positive act on the part of the employer, if the employer is sitting tight over the matter the same cannot go adverse to the interest of the employee rather if the employer was not satisfied, the extension letter of probationer period ought to have been issued, but in the present case that is not the fact rather on the basis of non-existing documents, on the basis of fabricated documents, the school has tried to justify the stand taken in this case. 23. From perusal of the judgment passed by Hon'ble Apex Court in the case Sukhwinder Singh (supra), it appears to the court, that probationer is on test and temporary employee has no right to continue, but this Court has failed to understand that without any adverse remark or letter of extension of probation period, the employer is not granting increment to the employee and when the employee is taking legal recourse, then a coercive method is being taken to remove the employee. When the employee is again going before the Court of Law, then required documents are manufactured to justify the stand which has inherent discrepancies and not acceptable to the court of law, as stated above. 24. In absence of any mentioning in the impugned order about any letter brought on record by the Management to show that her service was not found suitable and satisfactory and her probationer period is extended, this Court is compelled to record its finding that School Management was not diligent and honest in pursuing the matter in the name of Arya Samaj in issuing show-cause and in issuing termination letter as well as in issuing appellate dismissal order and placing the proceeding book. This Court feels that the act of the school must be deprecated. 25. This Court feels that the act of the school must be deprecated. 25. Under the aforesaid circumstances and in view of the elaborate judgment passed by the learned Jharkhand Education Tribunal, this Court is not inclined to interfere with the same. Accordingly, the same is hereby dismissed with the relief granted to the petitioner/respondent with 50% backwages from the date of termination from the service till she reports back to the work further with 6% interest per annum, but only with condition that petitioner shall file an affidavit that she was not gainfully employed during that period before any institution and if she was engaged for bread and butter then those period may be deducted while making payment of 50% backwages. 26. In the result, the instant appeal stands dismissed.