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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
LETTERS PATENT APPEAL NO. 37/2010 & 140/2010
IN WRIT PETITION NO. 330/1999.
.....
LETTERS PATENT APPEAL NO. 37/2010 IN WRIT PETITION NO. 330/1999.
Ramesh s/o Keshaorao Suryawanshi, Aged about 43 years, Occ - Service.
Resident of 95,Ganesh Nagar, Nagpur, Tahsil and District Nagpur. .... APPELLANT.
VERSUS
1. Presiding Officer, School Tribunal, Nagpur.
2. Anandkumar Nilkanth Patil, Aged about 42 years, Occ - Service.
Resident of Rahednagaon, Post Jawaharnagar, Tahsil and District Bhandara.
3. Bhartiya Buddha Dhammna Dnyan Vidyalaya, Shankar Nagar, Nagpur through its President Bhikkhu Mahapanth c/o. Bhadant Dharmkirti Vidyalaya, Nagpur - 14.
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4. The Principal, Bhadant Dharmkirti Jr. College of Science and Commerce, Amarjyoti Nagar, Nara Road, Nagpur 14.
5. Deputy Director of Education, Nagpur. ... RESPONDENTS.
WITH LETTERS PATENT APPEAL NO. 140/2010 IN WRIT PETITION NO. 330/1999.
1. Bhartiya Buddha Dhammna Dnyan Vidyalaya, Shankar Nagar, Nagpur through its President Bhikkhu Mahapanth c/o. Bhadant Dharmkirti Vidyalaya, Nagpur - 14.
2. The Principal, Bhadant Dharmkirti Jr. College of Science and Commerce, Amarjyoti Nagar, Nara Road, Nagpur 14. .... APPELLANTS.
VERSUS
1. Presiding Officer, School Tribunal, Nagpur.
2. Anandkumar Nilkanth Patil, Aged about 34 years, Occ - Service.
Resident of Rahednegaon, Post Jawaharnagar, Tahsil and District Bhandara.
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3. Deputy Director of Education, Nagpur Region, Nagpur.
4. Ramesh s/o Keshaorao Suryawanshi, Aged about 43 years, Occ - Service.
Resident of 95,Ganesh Nagar, Nagpur, Tahsil and District Nagpur. ... RESPONDENTS.
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Shri R.L. Khapre and Shri S. Malode, Advocate for appellants.
A.G.P. for Respondent - State.
Shri A.P. Thakare, Advocate for Respondent No.2.
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CORAM : B.P. DHARMADHIKARI &
SMT. SWAPNA JOSHI, J
J.
DATE : NOVEMBER 02, 2017.
ORAL JUDGMENT : (Per B.P. Dharmadhikari, J.) We have heard respective learned counsel for the parties yesterday and today also.
2. Judgment delivered by learned Single Judge on 15.12.2009 in Writ Petition No.330/1999 is questioned by subsequent appointee namely Ramesh Suryawanshi in Letters ::: Uploaded on - 14/11/2017 ::: Downloaded on - 14/11/2017 23:50:32 ::: Judgment. lpa37.10 4 Patent Appeal No.37/2010. Employer - Management has questioned it in Letters Patent Appeal No.140/2010.
3. Ramesh Suryawanshi was not party to Appeal STN/93/1995 filed by respondent Anand Kumar before the School Tribunal. He got himself impleaded as party in Writ Petition.
4. Services of Anand Kumar were dispensed with by order dated 30.03.1995 w.e.f. 04.05.1995 and this termination was questioned by him in Appeal No.53/1995. The School Tribunal vide its judgment dated 15.12.1998 allowed that appeal. It found that as Anand Kumar was belonging to Scheduled Caste, in absence of a candidate belonging to Other Backward Class, his selection and appointment by adhering to Rule 9 [9][a] of the Maharashtra Employee of Private Schools (Conditions of Service) Rules, 1981 (hereinafter referred to as "the 1981 Rules" for short), is valid.
5. Before the learned Single Judge, management as ::: Uploaded on - 14/11/2017 ::: Downloaded on - 14/11/2017 23:50:32 ::: Judgment. lpa37.10 5 also Ramesh contended that Rule 9[9][a] of 1981 Rules was wrongly applied. According to them, the said Rule cannot be construed as permitting recruitment in excess of percentage of reservation prescribed under Rule 9[7]. Effort before learned Single Judge was to demonstrate that Rule 9[7] [8] and [9] all form part of the scheme and need to be interpreted harmoniously, so a to see the prescribed percentage is not defeated by painting incorrect picture and by appointing open category persons.
6. Learned Single Judge has considered this submission and found that validity of Rule 9[9][a] was not questioned and its language was very clear. Learned Single Judge found that the judgment of Hon'ble Supreme Court reported at 1994 Mh.L.J. 218 (Shakuntala Ganpatsa Shirbhate .vrs. Industrial Weaving Cooperative Society), covered the controversy. Therefore, the Writ Petition preferred by the management was dismissed and then present Letters Patent Appeals are filed.
7. This Court has admitted the Appeals on 13.01.2010 ::: Uploaded on - 14/11/2017 ::: Downloaded on - 14/11/2017 23:50:32 ::: Judgment. lpa37.10 6 and granted interim relief in Letters Patent Appeal No. 37/2010 on 30.03.2010. With the result, Ramesh Suryawanshi who has been subsequently appointed continues in service even today.
8. Learned counsel appearing for the appellants submit that Ramesh Suryawanshi has continued to work for last about 22 years and hence, his service cannot be disturbed. Shri Khapre, learned counsel has without prejudice to his contentions on merit submitted that there are subsequent vacancies available with the management and absorption /reinstatement of employee Anand Kumar against those vacancies can be independently examined. He also adds that after his termination, Anand Kumar has started practicing as an Advocate.
9. He invites attention to judgment of Hon'ble Supreme Court reported at AIR 1995 SC 1371 (R.K. Sabharwal and others. .vrs. State of Punjab and others), to urge that when prescribed proportion of reservation is achieved and all roaster points are duly filled in, roaster ceases to operate and vacancies ::: Uploaded on - 14/11/2017 ::: Downloaded on - 14/11/2017 23:50:32 ::: Judgment. lpa37.10 7 arising thereafter needed to be filed in by a person belonging to the same category/caste. He contends that this law laid down by the Constitution Bench of the Hon'ble Supreme Court needed to be kept in mind while interpreting the provisions in Rule 9. According to him, at the relevant time Rule 9[7] prescribed 34% reservation and out of it only 13% was available for Scheduled Caste. The procedure stipulated in Rule 9[8] needed to be followed when Anand Kumar was recruited. According to him, vacancy then advertised was reserved for O.B.C. for whom there is 10% reservation. As suitable candidate from OBC did not become available, management claimed that Anand Kumar was appointed. He contends that the Management which has total 37 posts, has already then recruited about 25 Scheduled Caste teachers and hence, there was no backlog or scope for providing employment to any Scheduled Caste candidate in reserved quota. In this situation, if OBC candidate was not available, as there was no scope for providing employment to Scheduled Caste category, some other candidate, if available, from other category could have been looked into. He points out that Rule 9[9][a] also ::: Uploaded on - 14/11/2017 ::: Downloaded on - 14/11/2017 23:50:32 ::: Judgment. lpa37.10 8 contemplates recruitment of an open category candidate on year to year basis till the needed reserved category candidate is recruited.
10. According to Shri Khapre, learned counsel, therefore, Rule 9[a] only permits a reserved vacancy to be filled in by shifting to same to next category stipulated in Rule 9[7] and if there is no scope or there are already excess candidates of a particular caste/tribe, Rule 9[a] cannot be used to recruit persons from such caste/tribe. He contends that otherwise the prescribed percentage of reservation would never be achieved and proportion would never be maintained and constitutional policy therefore, would be defeated. He submits that unless and until rule 9[a] is so construed or read down, it may become un-constitutional.
11. In alternate and without prejudice, he submits that if vacancy then advertised for OBC was to be filled in through some other reserved tribe /caste candidate, the formalities like forwarding the information about vacancy to Employment ::: Uploaded on - 14/11/2017 ::: Downloaded on - 14/11/2017 23:50:32 ::: Judgment. lpa37.10 9 Exchange or District Social Welfare Officer or Association or Organization of backward classes, as envisaged in later part of Rule 9[8] must be fulfilled. The said organization must be asked to forward list of OBC candidates with them. If after all this is done and no candidate is forthcoming, then only recourse to Sub-rule 9[a] can be taken up. In present facts, as this was not done, the Deputy Director of Education granted approval for Anand Kumar only for one year. This was never assailed.
12. He invites attention to judgment of learned Single Judge to contend that though all these facts are appreciated, finding has been recorded that there was / is no challenge to constitutionality of Rule 9[9][a], and therefore, the judgment of School Tribunal in favour of Anand Kumar has been upheld.
13. Shri Khapre, learned counsel and Shri Malode, learned Counsel for respective appellants therefore, pray for allowing their respective Appeals.
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14. Shri Thakare, learned Counsel appearing for Anand Kumar submits that, Anand Kumar is not practicing as an Advocate at all, and affidavit denying the said fact is already placed on record. He further submits that as all compliances with Rule 9[8] were important, the employer issued appointment order on probation for a period of two years and vacancy was found to be clear and permanent. He contends that thus, approval given by the Deputy Director of Education is not decisive in present facts.
15. He also points out that compliance with Rule 9[8] was never in dispute either before the School Tribunal or then before the Learned Single Judge. For the first time before this Court during argument the issue has been raised. He contends that such an argument which raises disputed question on facts, cannot be entertained by this Court for the first time. He further submits that prayer to construe Rule 9[9][a] in a particular manner is allegedly with an attempt to save it from being declared as un-constitutional. He submits that there has to be an express prayer for that purpose and while examining ::: Uploaded on - 14/11/2017 ::: Downloaded on - 14/11/2017 23:50:32 ::: Judgment. lpa37.10 11 such prayer, exercise on reading down a particular provision can be undertaken. He submits that the language of Sub-Rule 9[a] is very clear and it does not require any reading down. He also invited attention of court to the fact that learned Single Judge has in the impugned judgment also relied upon later judgment of the Hon'ble Supreme Court reported at 2006 (1) Mh.L.J. 713 (Kankavali Shikshan Sanstha and others .vrs. M.R. Gavali and others), which follows the law as laid down in case of Shakuntala Ganpatsa Shirbhate .vrs. Industrial Weaving Cooperative Society (supra). He submits that however, in later judgment very same contentions were raised by the Deputy Director of Eduction. He has read out paragraph no.12 of the judgment of the Hon'ble Supreme Court for that purpose. He submits that contention that Sub-rule 9[a] can operate when there is backlog of a particular caste or tribe, is expressly negated by the Hon'ble Supreme Court. He submits that the learned Single Judge has followed the said law and therefore, has rightly dismissed the challenge as raised by the employer. According to him, in this situation, no case is made out warranting any intervention in Letters Patent Appeal. ::: Uploaded on - 14/11/2017 ::: Downloaded on - 14/11/2017 23:50:32 :::
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16. Lastly he points out that though the learned Single Judge has noted that total 25 teachers out of 37 belong to a particular caste, that by itself does not mean that employment provided to Anand Kumar is bad in law. He contends that when recruitment and employment of 25 teachers of same caste is found to be valid, management cannot discriminate against Anand Kumar and take a contrary stand. He states that Anand Kumar is out of employment since 1995, and hence, without remanding the matter back to School Tribunal, the Court should consider the controversy and uphold the judgment delivered by the learned Single Judge.
17. Perusal of judgment of Hon'ble Supreme Court in case of Shakuntala Ganpatsa Shirbhate .vrs. Industrial Weaving Cooperative Society (supra), shows observations in paragraph no.5 on Rule 9[9][a]. Hon'ble Supreme Court has found that in absence of a candidate belonging to Nomadic Tribe, the rule enjoins year to year appointment only if a candidate does not belonged to backward class. The dispute ::: Uploaded on - 14/11/2017 ::: Downloaded on - 14/11/2017 23:50:32 ::: Judgment. lpa37.10 13 before the Hon'ble Supreme Court was whether the appellant before it namely Shakuntala, belong to backward class. In the light of this dispute, the matter came to be remanded back.
18. In Kankavali Shikshan Sanstha and others .vrs. M.R. Gavali and others (supra), the respondent Shri M.R. Gawali, was appointed as Assistant Teacher on purely temporary basis for one academic year. In his appointment order, it was pointed out that post was reserved for Scheduled Caste and if a candidate of that category would become available, his services would be terminated. This appointment was approved by the Deputy Director on 04.04.1995. The backlog available against Scheduled caste was sought to be filled in by publishing advertisement and the Hon'ble Supreme Court has taken note of the fact that a particular backward class candidate was then not available. Therefore, Shri Gawali was again appointed temporarily for next academic year. In paragraph no.7, the Hon'ble Supreme Court has noted that despite repeated efforts, due to non availability of Scheduled caste/Scheduled Tribe category candidate and as post was filled on purely temporary ::: Uploaded on - 14/11/2017 ::: Downloaded on - 14/11/2017 23:50:32 ::: Judgment. lpa37.10 14 basis, management issued notice of termination on 23.09.1996 to Shri Gawali. The facts further show that Shri Gawali then approached the School Tribunal at Kolhapur and his appeal was dismissed on 31.03.2003. Shri Gawali, approached High Court and his writ petition was allowed on 05.03.2004. Management was directed to reinstate him with continuity and back-wages. This judgment was then questioned before the Hon'ble Supreme Court. The Deputy Director of Eduction opposed the act of management before the Hon'ble Supreme Court. Deputy Director of Education contended that management was bound to keep desired percentage of backward class candidate, as laid down in Rule 9[7] of the 2012 Rules and therefore, also under an obligation to fill in vacancy as per backlog of other backward class category. It was contended by the Deputy Director that since the vacancy was earmarked for reserved category other than OBC, as there was no backlog of OBC at the relevant time, it could not have been treated as clear vacancy for OBC category. It was contended that said vacancy should be treated as a clear vacancy for reserved category of which backlog existed. Hon'ble Supreme Court has in paragraph ::: Uploaded on - 14/11/2017 ::: Downloaded on - 14/11/2017 23:50:32 ::: Judgment. lpa37.10 15 no.13 pointed out the judgment in case of Shakuntala (supra), and relied on it. In paragraph no.14 it has been held that law laid down by it on Rule 9[9][a] resolves the controversy before it and accordingly it found that as no other candidate from reserved category / scheduled tribe was available, Shri Gawali was entitled to be appointed on regular basis.
19. Learned Single Judge has in paragraph nos. 8 and 9 applied his mind to this controversy. In paragraph no.9 there is a finding that out of 37, as many as 22 employees belong to scheduled caste. It is further observed that 4 candidates belong to reserved category, were directly shown as in open category and if those open category candidates are added in reserved category, then there were total 26 pots filled in through scheduled caste only. Learned Single Judge also mentions that percentage of reservation has been followed only in breach and observes that strangely the Education Officer ignored all this.
20. Rule 9[a] shows that when it is not possible to fill in teaching post for which vacancy is reserved for a person ::: Uploaded on - 14/11/2017 ::: Downloaded on - 14/11/2017 23:50:32 ::: Judgment. lpa37.10 16 belonging to a particular category of backward classes, it may be filled in by selecting a candidate from other remaining categories in order specified in sub-rule [7], and if no person from any of the categories is available, the post may be filled in temporarily or on year to year basis by a candidate not belonging to backward class.
21. Reading of this sub-rule, therefore, raises a question as to whether this exercise of shifting the other categories mentioned in sub-rule [7] or then to open category can be undertaken while conducting selection process in response to very same advertisement or then there has to be a different advertisement. If as per Rule 9[8], management advertises vacancy for a particular caste or tribe and notifies the same to employment exchange or department of social welfare or other organization as stated therein, it is unlikely that names of persons not belonging to advertised tribe/caste shall be forwarded by such office to the employer. If the advertisement is general in nature, i.e. stating that preference would be given to particular caste or tribe, then it may not fulfill the object of ::: Uploaded on - 14/11/2017 ::: Downloaded on - 14/11/2017 23:50:32 ::: Judgment. lpa37.10 17 mandate prescribing reservation and in that event everybody may apply. However, the advertisement in response to which Anand Kumar was selected and appointed or then advertisement in response to which Ramesh Suryawanshi has been selected are not produced on record. If all eligible aspirants get opportunity to apply and their claims are considered, perhaps then the provisions of Rule 9[a] can be given effected to and then the recruitment of a person belonging to some other caste / tribe in order stipulated in Rule 9[7] may be resorted to. Ramesh Suryawanshi has attempted to raise this question before the learned Single Judge by pointing out that the vacancy cannot be said to be filled by the scheduled caste candidate and the required percentage was already fulfilled. He therefore wanted Sub-rule 9[a] to be construed in a particular fashion. Whether in present facts recourse to Sub-rule 9[a] therefore was open or not, was the question which was raised before the learned Single Judge. Findings of learned Single Judge reproduced supra shows possibility of abuse of Rule 9[9].
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22. The learned Single Judge found that in the light of material pressed into service before him, validity of Rule 9[9] [a] needed to be questioned. That validity was infact not in dispute.
23. It is to be noted that the appellant Ramesh Suryawanshi has entered into service after termination of Anand Kumar and he was not party to the proceedings before the School Tribunal. He got himself impleaded as party respondent in writ petition filed by the employer and opposed the relief of reinstatement given to Anand Kumar. While opposing that relief, he has raised this contention. He could have very well filed appropriate proceedings and challenged the so called validity of the provisions. However, that has not been done.
24. In this situation, taking over all view of the matter, we find that as Ramesh Suryawanshi has continued in employment for last about 22 years, an opportunity needs to be given to him, if he is to be substituted if Anand Kumar who is ::: Uploaded on - 14/11/2017 ::: Downloaded on - 14/11/2017 23:50:32 ::: Judgment. lpa37.10 19 reinstated. In that situation, to find out whether the procedure prescribed in Rule 9[8] has been fully followed and whether the Deputy Director of Education was justified in granting approval only for one year when appointment order issued to Anand Kumar was on probation, all need to be looked into by the School Tribunal.
25. We therefore, find that these disputed questions which call for answer cannot be looked into at this stage for the first time. The learned Single Judge could have also remanded the matter back to the School Tribunal, but, then in the light of the assistance received, the arguments have been considered and the petition came to be dismissed.
26. In this situation, we are inclined to remand the matter back to the school tribunal to find out whether the procedure stipulated in Rule 9[8] of the 1981 Rules was complied with, and therefore, recourse to Rule 9[9][a] in facts of the matter was justified. Needless to mention that the contention of Ramesh Suryawanshi about validity of Sub-rule ::: Uploaded on - 14/11/2017 ::: Downloaded on - 14/11/2017 23:50:32 ::: Judgment. lpa37.10 20 9[a] or his prayer to read it down, is kept open and can be looked into at appropriate juncture.
27. In this situation, we also direct the School Tribunal to decide the appeal expeditiously. Accordingly judgment dated 15.09.2009 delivered by the learned Single Judge in Writ Petition No. 330/1999 is quashed and set aside. The judgment dated 15.12.1998 delivered by the School Tribunal in Appeal No STN/53/1999 is also quashed and set aside. That appeal is restored back to the file of School Tribunal. Parties are directed to appear before the School Tribunal on 04.12.2017. Ramesh Suryawanshi, present appellant shall be added as party respondent no.4 in that appeal. He shall file his reply by 20.12.2017 and the School Tribunal shall then decide the appeal as early as possible, and in any case by 31.01.2018.
28. With these directions, we partly allow both the Appeals and dispose of the same. No cost.
JUDGE JUDGE
Rgd.
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