Bombay High Court
2] Maharashtra High School Junior ... vs 2] Deputy Director Of Education on 21 November, 2013
Bench: Ravi K. Deshpande
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 2905/2012
1] Maharashtra Shikshan Prasarak Mandal,
Pimpalgaon (Bhosale), through
its Secretary, Shri Naresh Karade,
R/o. AT Post Bramhapuri,
Distt. Chandrapur.
2] Maharashtra High School Junior College,
Wairagad, Distt. Gadchiroli,
through its Principal. PETITIONERS
...VERSUS...
1] Shri Kawadu Pandurangji Ghutake,
R/o. At Post Mendhegaon, Post Bhuyar,
Tq. Pawani, Distt. Bhandara.
2] Deputy Director of Education,
Nagpur Region, Nagpur. RESPONDENTS
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Shri H.A.Deshpande, Advocate, for petitioner
Shri P.N.Shende, Advocate, for respondent no. 1
Shri T.R.Kankale, AGP, for Respondent No.2
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CORAM: R. K. DESHPANDE, J.
DATE : 21st NOVEMBER, 2013
ORAL JUDGMENT
Rule made returnable forthwith.
Heard the matter finally by consent of the learned
counsels appearing for the parties.
2] This petition challenges the order dated 19.11.2010
passed by the School Tribunal in Appeal No. STC/81/2003, deciding
a preliminary issue and holding that the appointment of the
respondent no.1 - employee was as per the provisions of Section 5
of M.E.P.S. Act read with Rule 9 (9) of the Rules framed thereunder.
The order holds that the respondent no.1 - employee belongs to
Scheduled Caste category and though he was appointed against a
vacancy reserved for Scheduled Tribe candidate, there was no
restriction for making an appointment of a candidate belonging to
another reserved category, if the candidate belonging to category for
which the post is reserved is not available.
3] The petition also challenges the ultimate judgment and
order dated 06.01.2012 passed by the School Tribunal in the said
Appeal, holding that the initial appointment of the respondent no.1 -
employee on 01.07.2000 has to be treated as on probation for a
period of two years and since the respondent no.1 - employee was
continued in service beyond 30.06.2002, he had acquired the status
of a permanent teacher. It has been held that the services of a
permanent employee could have been terminated only by following
the procedure laid down in Rule 36 and 37 of the M.E.P.S. Rules and
since the procedure was not followed while terminating the services,
the order of termination has been quashed and set aside. The
respondent no.1 - employee is directed to be reinstated in service
with continuity and full backwages. Hence, the management is
before this Court.
4]
The undisputed factual position is as under;
The respondent no.1 - Kawadu Pandurangji Ghutake
was initially appointed by a order dated 04.10.1999 as a lecturer in
junior college run by the petitioner society for a period of one year
from 04.10.1999 to the end of the session in the year 2000. This
appointment was pursuant to an advertisement issued on
30.09.1999. The proposal for appointment of the respondent no.1 -
employee was forwarded to the Deputy Director of Education, who
has refused to grant his approval by an order dated 27th March,
2000, holding that the candidate for appointment to the post of
lecturer in Sociology from Nomadic Tribe (C) category was available
at the time of interview, but still the respondent no.1 - employee
has been appointed leaving the backlog of the said category. The
respondent no.1 - employee was thereafter continued by separate
order of appointment dated 01.07.2000 on temporary basis for a
period of one year i.e upto the end of the Session 2001. Again
approval to this appointment was rejected by the Deputy Director of
Education by his order dated 13th October, 2000, holding that the
backlog of the reserved category candidate has not been fulfilled.
The respondent no.1 - employee thereafter was again issued a
fresh order of appointment for the period from 02.07.2001 till
30.04.2002. Since he was prevented from signing the muster roll
w.e.f. 18.08.2003, he approached the School Tribunal under Section
9 of M.E.P.S. Act, by filing Appeal No. STC/81/2003, treating it as
otherwise termination and claiming reinstatement with continuity and
backwages.
5] The Management in response to the memo of appeal
took the stand that the appointment of the respondent no.1 -
employee was against the post reserved for Scheduled Tribe
candidate. According to the Management, the Deputy Director of
Education has refused to grant approval to the appointment of
respondent no.1 - employee on the ground that there exists a
backlog of Nomadic Tribe (C) category and the petitioner did not
belong to the said category. It was denied that the appointment of
the respondent no.1 - employee was in a clear and permanent
vacancy and the stand was taken that his appointment was against
the post reserved for Schedule Tribe candidate, which was made on
year to year basis without conferring any right upon the employee to
claim permanency in service.
6] After going through the documents placed on record,
the memo of appeal, reply filed by the management and the orders
passed by the School Tribunal, the undisputed position seems to be
that the appointment of the respondent no.1 - employee on every
occasion is on temporary basis for a period of one session only.
Though the initial appointment of the petition on 04.10.1999 was
pursuant to the advertisement dated 30.09.1999 as a lecturer in
junior college, it was only for a period of one year which came to an
end at the end of Session 1999-2000. In the memo of appeal, there
is no grievance made in respect of it. It is, however, claimed by the
respondent no.1 - employee that his continuation in service by
issuing fresh orders of appointment on 01.07.2000 and 02.07.2001
was in the same post, though there is no specific pleadings in
respect of it. The respondent no.1 - employee claimed to have been
appointed as a lecturer to teach the subject - Sociology and History
against a post reserved for Nomadic Tribes (C) category. Though it
is the stand taken by the management in its reply that the
appointment of the respondent no.1 - employee was as a lecturer in
Sociology in the post reserved for Scheduled Tribe Category, it is
urged that, reference in reply to post being reserved for Scheduled
Tribe candidate is due to inadvertence and actually it is the
appointment made against the post reserved for Nomadic Tribes (C)
category.
The Deputy Director of Education has rejected the
approval holding that in spite of availability of the candidate
belonging to Nomadic Tribes (C) category, the respondent no.1 -
employee belonging to Scheduled Caste category has been
appointed, contrary to reservation, and hence the appointment
cannot be approved.
7] The learned counsels appearing for the parties do not
dispute the position of law that if a post is reserved in the
advertisement for a particular category of backward class and if such
candidate was not available for appointment, then a candidate
belonging to remaining backward class category could be appointed
on the post and such appointment need not be on year to year basis,
but will have to be treated as one on probation. Shri Deshpande, the
learned counsel appearing for the petitioner, has, however, relied
upon the decision of this Court rendered on 26th March, 2012, in
W.P. No. 5279/2009 (Magaswargiya Shikshan Sanstha, Nagpur
and two others vrs. Ku. Kalpana Dadaji Rahate and two others),
to urge that the question whether a candidate belonging to particular
backward category was available or not is a question of fact and it is
required to be pleaded and proved. In the absence of such pleading
and proof, according to him, the principle of law referred to above
shall not be applicable. He submits that there is total absence of
pleadings and proof, either that the post was reserved for Nomadic
Tribes (C) category and that the candidate belonging to said
category was not available, or that the post was reserved for
Scheduled Tribe Category and the candidate belonging to the said
category was not available. He submits that, on the contrary, the
orders refusing to grant approval, placed on record, clearly indicate
that the post was reserved for Nomadic Tribes (C) category and in
spite of availability of such candidate, the petitioner was appointed.
Hence, according to him, the appointment has to be necessarily
treated as one on year to year basis, without conferring any status of
permanency even if the employee completes continuous service of
more than two years.
8] It is urged by Shri Shende, the learned counsel
appearing for the respondent no.1 - employee that in the memo of
appeal, it is clearly stated that the respondent no.1 was appointed in
a clear and permanent vacancy reserved for Scheduled Tribe
Candidate on year to year basis. It is, however, averment in the
memo of appeal that the respondent no.1 - employee belonged to
backward class category i.e., his sub-caste is Mahar (Scheduled
Caste). He further submits that reference is also made to Rule 9(7)
and 9(8) of the M.E.P.S. Rules, which, according to him, casts a
bounden duty upon the management that a candidate belonging to a
category for which the post is reserved is not available, then to
appoint the candidate belonging to other backward class category on
regular basis. He has relied for this proposition upon two decisions
of the Apex Court i.e. (i) in case of Shakuntala Ganpatrsa
Shirbhate vrs. Industrial Weaving Co-operative Society
reported in AIR 1994 SC 36, AND (ii) in case of Kankavali
Shikshan Sanstha and others vrs. M.R.Bavali and others,
reported in 2006 (1) ALL MR (S.C) 266. He supports the findings
recorded by the School Tribunal, holding that for want of candidate
belonging to Schedule Tribe Category, the petitioner who belongs to
Scheduled Caste Category was required to be appointed on
probation.
9] In the background of the aforesaid disputed and
undisputed factual position, it is apparent that the burden to establish
that the appointment of the petitioner was made for want of
candidate belonging to category for which the post was reserved,
was upon the respondent no.1 - employee , the original appellant. It
is not clear from the memo of appeal filed by the respondent no.1 as
to whether a candidate belonging to Scheduled Tribe Category was
available when he was appointed initially in response to the
advertisement dated 30.09.1999. In spite of knowing fully well that
the Deputy Director of Education has refused to grant approval to his
appointment, on the ground that the post was reserved for Nomadic
Tribes (C) category and the candidate belonging to the said category
was available, neither any reference is made to it nor specific
avertments are made that the Deputy Director of Education
proceeded on wrong assumption that the respondent no.1 was
appointed against a post reserved for Nomadic Tribe (C) Category.
Though an averment is made in the memo of appeal that the
respondent no.1 was appointed in a permanent vacancy on year to
year basis in a reserved vacancy for Scheduled Tribe, there is no
averment that the candidate belonging to Scheduled Tribe Category
was not available and therefore, the appointment of the petitioner,
who belongs to Schedule Caste (Mahar) category, was made. In the
absence of such averments and the dispute which has surfaced, it
was absolutely necessary for the respondent no.1 to have come
forward with a specific case.
10] Be that as it may, the respondent no.1 did not make
any grievance against the fresh appointments made on 01.07.2000
and 02.07.2001. From the documents produced on record, it is
apparent that the respondent no.1 had accepted that his
appointment was purely on temporary year to year basis and he
could not have claimed regular appointment on the post, whether it
was reserved for Nomadic Tribe (C) category or Scheduled Tribe
Category. The decision of the Apex Court in Kankawali's case,
relied upon by the learned counsel for the petitioner, follows the
earlier decision of the Apex Court in Shakuntala's case.
Following these decisions, the learned Single Judge of this Court in
a decision rendered in Sharad Balaji Mankar vrs. Presiding
Officer, School Tribunal, Amravati and others, delivered in Writ
Petition No. 2767 of 1996, decided on 6th November, 2006, has held
that in absence of pleadings and the material facts, the benefits
under Rule 9(9) of the M.E.P.S Rules cannot be granted. This case
has been considered by this Court in a decision in the case of
Magaswargiya Shikshan Sanstha, cited supra. In view of this, the
view taken by the School Tribunal in the impugned judgment and
order holding that the appointment of the respondent no.1 employee
was required to be treated as on probation w.e.f. 01.07.2000 and
consequently he had acquired deemed confirmation of service,
cannot be sustained. The appointment of the respondent no.1 was
on year to year basis and after coming to an end the period
stipulated in the order of appointment, his services were terminated.
11] In the result, the writ petition is allowed. The judgment
and order dated 06.01.2012 passed by the School Tribunal in Appeal
No. STC/81/2003, along with the order dated 19.11.2010 passed
therein, is hereby quashed and set aside. The Appeal No.
STC/81/2003 is dismissed. No orders as to costs.
JUDGE
Rvjalit
