Bhartiya Buddha Dhamma Dyan ... vs Presiding Officer
2009 Latest Caselaw 91 Bom

                                      1




                                                                            
    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  NAGPUR BENCH AT NAGPUR.




                                                    
                  WRIT PETITION NO.330 OF 1999.




                                                   
    PETITIONERS: 1. Bhartiya Buddha Dhamma Dyan Vidyalaya,
                    Shankar Nagar, Nagpur, through its President
                    Bhikkhu Mahapanth, C/o Bhadant Dharmakirti,
                    Vidyalaya, Nagpur - 14.




                                         
                           
                     2. The Principal, Bhadant Dharmkirti Jr.
                        College of Science and Commerce, Amarjyoti
                         Nagar, Nara Road, Nagpur 14.
                          
                                VERSUS

    RESPONDENTS:1.Presiding Officer,
         

                   School Tribunal, Nagpur.
      



                      2. Anandkumar Nilkanth Patil, 
                          aged about 34 years, Occu: Service,
                          R/o Rahednegaon, Post Jawaharnagar,
                          Tq. and Distt. Bhandara.





                      3. The Deputy Director of Education, Nagpur.

                       4. Shri Ramesh s/o Keshaorao Suryawanshi,
                           aged about 33 years, Occu: Service, R/o 95, 





                           Ganesh Nagar, Nagpur, Tq. and Distt.Nagpur.

    ==-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-==-=-=-=-=-=-=-=-
    Shri Sudhir Malode, Advocate for the petitioners.
    Shri R.Sharma, Advocate for the respondent no.2.
    Shri  R.L.Khapre, Advocate for the respondent no.4.
    =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
                           CORAM :    C.L.PANGARKAR,J.

                           DATED:      15th DECEMBER, 2009.









                                                                                       
    ORAL JUDGMENT:




                                                               

1. This writ petition is preferred by the Society running the

school against the order passed by the School Tribunal directing the

reinstatement of respondent no.2.

2.

The facts giving rise to the writ petition are as follows -

Petitioner no.1 is an institute, which runs a school.

Respondent no.2 applied to the said school for being appointed as

an Assistant Teacher. Respondent no.2 is M.Sc. in Mathematics and

B.Ed. and belongs to Scheduled Castes. Respondent no.2 had

applied to the petitioner in response to the advertisement issued by

petitioner no.1. It found respondent no.2 to be eligible for the said

post and he came to be appointed as an Assistant Teacher. He

worked as an Assistant Teacher from 21/8/1993 to the end of

Session, 1994. The Education Officer had also accorded an

approval to the appointment of respondent no.2. The petitioner in

1994-95 advertised the post of Junior Lecturer. Respondent no.2

applied for the said post being qualified for the said post. He was

appointed by order dated 1/9/1994. He was appointed on a

probation of two years. It was a clear vacant post. Respondent

no.2 was during service tenure, also deputed for the H.S.C.

Examination paper valuation. After completing that work, when

respondent no.2 came back to the school in April, 1995, to his utter

surprise, his services were terminated. Feeling aggrieved by the

termination, respondent no.2 preferred an appeal before the School

Tribunal seeking his reinstatement. The petitioner had contested

the appeal. It is the contention of the petitioner that since the

appointment of respondent no.2 was temporary it automatically

came to an end at the end of the year. There was no clear and

vacant post of Lecturer. It is the contention of petitioner that there

was no reason for respondent no.2 being surprised by the order of

termination, since respondent no.2 was very much aware that his

appointment was against reserved post and the posts were required

to be filled as per roster. Petitioner nos.1 and 2 deny that the

approval granted by respondent no.3 confers any right on

respondent no.2. It is contended by the respondents that one Mrs.

Meshram and Shende were appointed as Assistant Teacher in the

year 1990 and they were senior to respondent no.2 and therefore,

they were required to be absorbed first. The approval to the

respondent no.2's appointment was refused by the Education

Officer also on the ground that the surplus teachers have to be

absorbed first.

3. The learned Judge of the Tribunal found that respondent no.2

was entitled to reinstatement by virtue of provisions contained in

Section 5 and Rules 9(9)(a) of the Maharashtra Employees of

Private Schools (Conditions of Service) Rules, 1981. Holding so, he

directed the reinstatement and feeling aggrieved thereby, this writ

petition is preferred.

4. I have heard the learned counsel for the petitioners and the

respondents.

5. Respondent no.2 was appointed by order dated 1/7/1994 as

Junior Lecturer against the post advertised. Respondent no.2 was

duly qualified to hold the post is not disputed. His services were

terminated w.e.f. 4/5/1995 is also not disputed. The post against

which he was appointed was reserved for O.B.C. candidate is also

not disputed. Respondent no.2 belongs to Scheduled Caste is also

further not disputed. The post against which he was appointed was

otherwise in a clear vacancy is further not disputed. The judgment

of the Tribunal shows that the appointment was on probation and

for a period of two years. Annexurte 'B' is the order of

appointment and the said appointment order clearly indicates that

the appointment is on probation for a period of two years. It was

contended by the petitioners that the post against which

respondent no.2 was appointed was a post reserved for the O.B.C.

category. It is contended that respondent being Scheduled Caste,

he could not claim that it was a clear vacancy for him. It was

further submitted that since at that time O.B.C. candidate was not

available, respondent no.2 was temporarily appointed and his

approval was also temporary. Shri Khapre, learned counsel for

respondent no.4, supporting the argument of the petitioner also

contended that appointment in such case is said to be temporary

and from year to year. He submits that if an appointment of

candidate belonging to O.B.C. category is made against the

Scheduled Caste category vacancy and that is approved, that would

upset the percentage of reservation which the Constitution

mandates. He submits that, therefore, a candidate belonging to a

particular category has to be appointed permanently as against the

vacancy of his caste alone. In the context, it would be necessary to

look into Rule 9(9)(a) of the M.E.P.S. Rules The rule reads as

follows.

(9) (a) In case it is not possible to fill in the

teaching post for which a vacancy is reserved for

a person belonging to a particular category of Backward Classes, the post may be filled i n by

selecting a candidate from the other remaining categories in the 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 an year-to-year basis by a candidate not belonging to the Backward Classes.

6. If the rule is read, it would be clear that if a reserved class

category is to be filled in and a candidate from that particular

category is not available then candidate from the other reserved

class category can be appointed as against that post. If no reserved

class category candidate is available from any category then the

candidate from the open class can be appointed, but the

appointment of the open class candidate would be from year to

year alone. The rider applies only to open class category only. It

does not apply to a candidate belonging to other reserved class

category i.e. rider of year to year appointment does not apply to a

candidate appointed against reserved category from reserved

category. This interpretation seems to be the settled position of

law. Therefore, if a candidate from one reserved category is

appointed against the vacancy of other reserved category, his

appointment need not be from year to year. Respondent no.2

admittedly belongs to Scheduled caste. He was appointed against

the reserved category of O.B.C. Rule 9(9)(a) says that the

appointment should be made in the order as given in Rule 9(7). If

Rule 9(7) is read, it is clear that in order of priority, the scheduled

caste is first. Therefore, appointment of respondent no.2 has to be

necessarily treated as falling under Rule 9(9)(a) and 9(7). The

Supreme Court dealing with the same question observed as under

in 1994 Mh.L.J.218 (Shakuntala Ganpatsa Shirbhate ..vs..

Industrial Weaving Co-operative Society).

3. According to the case of the respondents the vacancy in

which the appellant was appointed from year to year was earmarked for a candidate belonging to a Nomadic Tribe.

In absence of a candidate belonging to the Nomadic Tribe the appellant was appointed in accordance with the provisions of Section 5(5) of the Act. As soon as the

respondent no.4, who belongs to a Nomadic Tribe, was available, the appointment of the appellant had to be

terminated.

4. Several other questions were raised by the parties

before the School Tribunal and the High Court, but since they are not being agitated now before us, we are not detailing the facts relevant to those questions. The

learned counsel for the appellant before us has contended

that assuming the other findings recorded against her by the High Court to be correct, she is still entitled to regular appointment in view of Rule 9(a) of the Maharashtra

Employees of Private School (Conditions of Service) Rules, 1981, which is quoted below :-

"(9)(a) In case it is not possible to fill in the teaching post for which a vacancy is reserved for a person belonging to a particular category of Backward Classes, the post may be filled in by selecting a candidate from the other remaining categories in the 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 an year-to-year basis by a candidate not belonging to the Backward Classes" .......

Since the appellant is a member of one of the backward classes referred to in the said Rule, she was

entitled to a regular appointment in the very first year

when no person belonging to a Nomadic Tribe was available.

5. The argument of the learned counsel appears to be well founded. Admittedly the respondent no.4 was

available for appointment only in 1988. On the first

occasion when the post was being filled up, there was no member of a Nomadic Tribe available for appointment. In the absence of a candidate belonging

to a Nomadic Tribe, the Rule enjoins year to year appointment only if an available candidate does not belonging to the backward classes. The question,

therefore, is whether the appellant belongs to a backward class.

7. The ratio is very clear. Similar view has been taken by the

Supreme Court in a decision reported in 2006(1) Mh.L.J. 713

(Kankavali Shikshan Sanstha and others ..vs.. M.R.Gavali and

others) following the decision in Shakuntala's case. Shri Khapre,

learned counsel for the respondent no.4, submits that both these

decisions do not take into consideration the aspect of percentage of

reservation and therefore, they cannot be said to be applicable to

the case at hand. He submits that if the rule is interpreted in that

way, the percentage of reservation would go topsy-turvy. He

submits that in such case every institution would find some way to

avoid appointment of a particular category candidate and would

appoint candidate of different reserved category. He submits that

percentage of reserved category has to be maintained as per Rule

9(7). He also submits that there is a constitutional mandate to

that effect and relies on a decision reported in AIR 1996 SC 1189

( Ajit Singh Januja and others ..vs.. State of Punjab and others).

The Supreme Court observes as under -

"In respect of the second question as to whether once the post earmarked for Scheduled Castes/Tribes and Backward Classes on the roster are filled and the reservation is complete the roster can operate any further, the Constitutional Bench said:

"We see considerable force in the second contention raised by the learned counsel for the petitioners. The

reservations provided under the impugned Government instructions are to be operative in accordance with the roster to be maintained in each

Department. The roster is implemented in the form of running account from year to year. The purpose of

"running account" is to make sure that the Scheduled

Castes/Schedule Tribes and Backward Classes get their percentage of reserved posts. The concept of

"running account" in the impugned instructions has to be so interpreted that it does not result in excessive reservation. "16% of the posts...." are reserved for

members of the Scheduled Castes and Backward

Classes. In a lot of 100 posts those falling at Serial Numbers 1,7,15,22,30,37,44,51,58,65,80,87 and 91 have been reserved and earmarked in the roster for

the Scheduled Castes. Roster points 26 and 76 are reserved for the members of Backward Classes. It is thus obvious that when recruitment to a cadre starts

then 14 posts earmarked in the roster are to be filled from amongst the members of the Scheduled Castes. To illustrate, first post in a cadre must go to the Scheduled caster and thereafter the said class is entitled to 7th, 15th, 22nd and onwards up to 21st post. When the total number of posts in a cadre are filled by

the operation of the roster then the result envisaged by impugned instructions is achieved., In other

words, in a cadre of 100 posts when the post earmarked in the roster for the Scheduled Castes and the Backward Classes are filled the percentage of

reservation provided for the reserved categories is achieved. We see no justification to operate the roster

thereafter. The "running account" is to operate only

till the quota provided under the impugned instructions is reached and not thereafter. Once the

prescribed percentage of posts is filled the numerical test of adequacy is satisfied and thereafter the roster does not survive."

8. The rule 9 itself says that as against one reserved class

vacancy a candidate of other reserved class could be appointed.

Such appointment is bound to affect the per centage of reservation.

The validity of the rule has not been challenged in this writ

petition at all and cannot be considered by a Single Judge.

9. Shri Khapre, learned counsel for the respondent no.4,

submits that the reservation for scheduled castes candidate was

more than full on the day respondent no.2 was appointed and he

could not have been appointed on permanent basis in a vacancy for

O.B.C. as he belongs to scheduled castes and thereby eating up the

vacancy of O.B.C. The learned counsel for respondent no.4 placed

before me the present position of the appointments from various

categories. The present position appears to be just shocking. Out of

37, as many as 22 candidates belong to scheduled castes from

'Mahar' category. Strangely, four candidates belonging to Buddhist

category are shown in open category. If those four open class

candidates, who belong to Buddhist are added in reserved category,

then it would be clear that out of 37 posts, 26 posts have been

filled by the scheduled cases candidates. Thus, the percentage of

reservation has been followed only in breach and strangely the

Education Officer has been ignoring all this. One does not know

why the Education Officer only objects to the appointment of this

candidate i.e. respondent no.2. Why did the Education Officer not

take the same stand when other appointments were made ?. The

list supplied is marked as 'A-I' in the record of the writ petition. Be

that as it may, we are bound by the mandate of the Apex court. It

cannot be said that the Supreme Court was not aware of the

consequences of interpretation of Rule 9(9)(a). If, therefore,

respondent no.2 was appointed as against the category of O.B.C.

and the post was vacant and he was appointed on the probation, it

must be said that his appointment falls under rule 9(9)(a) and

Section 5(2) of the M.E.P.S.Act. The learned Judge of the Tribunal

has rightly directed the reinstatement. The writ petition

is,therefore, dismissed. No order as to costs.

                                 ig                                     JUDGE.
                               
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