Bombay High Court
Sushama Prabhakar Joshi vs President/Secretary Bhartiya ... on 11 March, 2016
Bench: R.V. Ghuge
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4760 OF 2000
Smt. Sushama d/o Prabhakar Joshi
(Sau. Sushama w/o Anant Kulkarni)
Age: 33 years, Occu.: Nil,
r/o Sharadnagar, Latur. ..PETITIONER
VERSUS
1. The President/Secretary,
Bhartiya Shikshan Prasarak Mandal,
Ambejogai, Dist. Beed.
Through its Branch at Latur,
c/o Keshavraj Vidyalaya, Latur.
2. The Head Master,
Shri. Keshavraj Vidyalaya, Latur,
Tq. & Dist. Latur.
3. The Education Officer (Secondary)
Zilla Parishad, Latur,
Tq. & Dist. Latur. ..RESPONDENTS
....
Mr. V.D. Gunale, Advocate for petitioner.
Mr. V.V. Bhavthankar, Advocate for Respondent No.1.
Respondent No.2 served.
Mr. D.R. Korde, AGP for Respondent No.3.
Respondent No.4 deleted.
....
CORAM : RAVINDRA V. GHUGE, J.
DATED : 11th MARCH, 2016
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ORAL JUDGMENT :
1. This petition was admitted by this Court on 19.01.2001
and did not grant any interim relief to the petitioner.
2. The petitioner is aggrieved by the judgment delivered by
the School Tribunal, Aurangabad dated 09.12.1999 by which her
Appeal No. 126/1995 has been dismissed.
3.
Mr. Gunale, learned Counsel appearing on behalf of the
petitioner-employee has strenuously submitted as under:-
(a) The petitioner has acquired the qualification of M.A.,
B.Ed. in English.
(b) She belongs to the open category.
(c) By an order of appointment dated 17.06.1993, she was
appointed on 24.06.1993.
(d) Though her appointment was shown to be for a
temporary period of an academic year, she was appointed against a
permanent vacant post.
(e) By an order dated 31.03.1994, the petitioner was
informed that her service has come to an end. However, she was
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given the liberty to apply for continuation.
(f) By order dated 13.06.1994, she was again continued for
the academic year 1994-95 and was granted continuity.
(g) By letter dated 03.04.1995, she was informed that her
services have come to an end upon conclusion of the academic year
1994-95. However she was given the liberty to apply for the next
academic year.
(h)
By order dated 16.05.1995, she was informed that her
service has come to an end after the conclusion of the academic
year 1994-95 and since she was appointed against the ST category,
she may apply for the said post as and when the management
publishes an advertisement.
(i) The petitioner was continued in employment till
16.06.1993 and was orally terminated on 17.06.1993.
(j) She preferred Appeal No. 126/1995 before the School
Tribunal, Aurangabad.
(k) The respondent-management filed a written statement
stating that the Education Officer declined to grant approval to the
appointment of the petitioner since there was a backlog with regard
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to the ST category and hence the petitioner could not be continued
for the academic year 1995-96.
(l) Section 4(6) of the M.E.P.S. Act, 1979 has not been
complied with by the management while effecting the oral
termination of the petitioner.
(m) Rules 9(8) and 9(9) of the 1981 Rules have not been
complied with, with regard to the manner of filling in the posts
reserved for the categories and therefore the petitioner deserves to
be continued in service.
(n) The petitioner has worked for two academic years and
therefore she is deemed to have become permanent.
(o) He relies upon the judgment of the learned Division
Bench of this Court in the matter of Lalitha Thutpi Vs. C.B.
Karkhanis, Presiding Officer, School Tribunal Bombay and
Others, 1998(1) Mah.L.R. 235 to support the contention of the
petitioner that after completion of two years, she should be
continued in employment and there can not be an oral termination
in the eyes of law.
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4. Mr. Bhavthankar, learned Counsel appearing on behalf of
Respondent No.1-management submits that the management had
temporarily engaged the petitioner. Neither was any post available,
nor was any advertisement published. No applications were called
for and no interviews were held for selecting any candidate.
5. He submits that the petitioner was appointed temporarily
for one academic year. After the conclusion of the academic year,
she was informed that her temporary engagement has come to an
end. She was given an option to file an application or meet the
Headmaster for seeking further continuation. Whenever she was
engaged, a specific order of appointment for a particular academic
year was issued to her.
6. He further submits that by communication dated
03.04.1995, the petitioner was informed that her temporary
engagement has come to an end after the completion of the
academic year 1994-95. She has not challenged the said letter
dated 03.04.1995. By another communication dated 16.05.1995,
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she was intimated that since the post is reserved for the ST
category, she may apply if she so desires provided an advertisement
is published. Such an advertisement was subsequently published in
Dainik Tarun Bharat. The petitioner has not applied pursuant to
the said advertisement. One candidate Mr. C.P. Shelke from the ST
category was selected pursuant to the advertisement dated
20.05.1995 and was given an appointment order on 26.06.1995.
Since he did not join, the management has selected Mr. C.D.
Pardhe, a person belonging to the SC category and his appointment
was approved by the Zilla Parishad.
7. He therefore submits that neither was the petitioner
selected against a sanctioned vacant post, nor was the petitioner
appointed on probation against any post. An employee appointed
purely on temporary basis, will have no right to be continued on the
post.
8. I have considered the submissions of the learned
Counsels.
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9. There is no dispute as regards the orders of appointment
issued to the petitioner for the academic years 1993-94 and 1994-
95. Similarly, there is no dispute with regard to the letters of
termination having been issued to the petitioner whenever the
academic year had come to an end. It is equally undisputed that
the petitioner has never challenged any of her previous termination
orders.
10. It emerges from the record that the management had
neither published any advertisement, nor had called for any
applications for selecting a candidate. The respondent has come up
with a defence that the Education Officer intimated the
management that since there was a backlog for the ST category and
the post was reserved for ST category, the petitioner could not
continue on the said post and that the said post deserves to be
advertised.
11. By way of this petition, this Court is to consider the claim
of the petitioner. Whether the respondent-management has
properly advertised the post or has incorrectly appointed the
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candidate from the SC category against the ST category because the
candidate belonging to the ST category did not join, is a matter of
adjudication for the competent authorities who are to grant
approval in such circumstances. Issue is as to whether the
petitioner would have any right to continue on the post which was
neither advertised nor any selection process/procedure followed
while appointing her.
12. The petitioner was communicated by the letter dated
03.04.1995 that her services have come to an end after the
conclusion of the academic year 1994-95. The petitioner has not
challenged the said communication which appears to be an order of
concluding her temporary services. Instead, the petitioner chose to
claim oral termination with effect from 17.06.1995.
13. Be that as it may, neither the appointment of the
petitioner was made by following the due procedure of law, nor
was the petitioner appointed on a permanent vacant post in the
open category. However, it cannot be ignored that the
management must have been aware about its backlog and that the
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post was reserved for the ST category. Even if it is presumed that
the management acted ignorantly and did not look into the aspect
of reservation and therefore continued the petitioner for two years,
such ignorance or negligence cannot be at the cost of the petitioner.
14. This Court in the matter of Ujwal Shikshan Sanstha,
Amgaon (Dighori) and Another Vs. Presiding Officer, Addl.
School Tribunal, Nagpur, 2015(1) Mh.L.J. 194 has concluded
that when the management misleads a candidate and utilizes his
services and then dispenses with his services on the ground that no
approval is granted, such management deserves to be saddled with
costs.
15. In the light of the above, the judgment of the School
Tribunal, Aurangabad is neither perverse nor erroneous. The same
does not call for any interference.
16. However, since the respondent-management has
continued the petitioner for two academic years despite being
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aware of the backlog and the post being reserved for ST category, I
deem it proper to impose costs of Rs.75,000/- on the respondent-
management to be paid to the petitioner within a period of six
weeks from today as costs for misrepresentation and for making the
petitioner suffer rigours of litigation.
17. In the light of the above, this petition is disposed off with
the direction to the respondent-management to pay the costs as
above. Rule is discharged.
(RAVINDRA V. GHUGE, J.)
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