Bombay High Court
Kshatra Kulstapanna Maratha ... vs Harishchandra Sadashiv Kubal And ... on 22 June, 2017
Bench: Rajesh G. Ketkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.398 OF 2004
Kshatra Kulstapanna Maratha Samaj through
Trustee Subhash Shankar Pathak ... Petitioner
Vs.
Harishchandra Sadashiv Kubal and others ... Respondents
Mr. A. S. Karwande for Petitioners.
Ms Jyoti J. Jadhav, AGP for Respondent No.4-State.
CORAM : R. G. KETKAR, J.
DATE : JUNE 22, 2017
JUDGMENT :
Heard Mr. Karwande, learned Counsel for petitioners and
Ms Jadhav, learned AGP for respondent No.4-State at length.
2. By this Petition under Articles 226 and 227 of the Constitution of
India, petitioners, hereinafter referred to as 'Management', have
challenged the judgment and order dated 28.11.2003 passed by the
learned Presiding Officer, School Tribunal, Kolhapur Region, Kolhapur
(for short 'Tribunal') in Appeal No.130 of 1997. By that order, the
Tribunal allowed the appeal preferred by the first respondent, hereinafter
referred to as 'respondent', and set aside the oral otherwise termination
of 10.06.1997. The Tribunal directed the Management to reinstate
respondent to his original post by giving him benefits of continuity in
service since the date of 02.09.1996 onwards and to pay him regular
salary since the date of reinstatement and onwards. The relevant and
material facts giving rise to filing of this Petition, briefly stated, are as
follows:
3. The Management had issued advertisement on 19.08.1996
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inviting applications from qualified candidates. The post in question
was earmarked for S.T. Category. The qualification required for the
post was S.S.C. D.Ed. and the pay scale admissible was Rs.1200-2400.
The respondent belongs to O.B.C. Category. The respondent was issued
appointment order dated 27.08.1996. Clause 2 recited that the
appointment was purely temporary for a period of 7 months from
02.09.1996 to 30.04.1997 in the leave deputation vacancy. After expiry
of the above period, services of the respondent was to stand terminated
without any notice. Clause 8 recited that as per 200 point roster, the
post is reserved for S.T. Category only. Appointment of the respondent
is temporary for the period from 02.09.1996 to 30.04.1997. The
Education Officer, Zillha Parishad, Sindhudurg approved appointment of
the respondent for the year ending on 30.04.1997.
4. Mr. Karwande submitted that as the appointment of the
respondent was on temporary basis i.e. for a definite period from
02.09.1996 to 30.04.1997, the Tribunal committed serious error in
allowing the appeal. He invited my attention to Government
Resolutions dated 25.02.1980 and 12.07.1981 which lay down that
while filling the posts reserved for S.C., S.T., D.T. and N.T., if candidate
of that specific category is not available then the candidate from the
remaining categories can be appointed by exchange. But it is not
allowed to appoint the candidate of O.B.C. Category. As the respondent
belongs to O.B.C. category, in view of the Government Resolutions, he
could not have been appointed against S.T. Category. He has taken me
through the reply filed by the Management opposing the appeal.
5. Mr. Karwande further submitted that after terminating the
services of the teacher, Management had issued advertisement on
15.05.1997. In pursuance thereof, one Shri Khadye Pravin was
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appointed as Assistant Teacher from O.B. C. Category for the temporary
period of 15.07.1997 to 30.04.1998. The said Khadye left the services
on 27.12.1997 and on that post, one Ms Kanekar Vidhya was appointed
on temporary basis. Ultimately, the Management appointed Shri Suresh
L. Konkani belonging to S.T. Category on 01.12.1998. The appointment
of Mr. Konkani was approved by the third respondent, Education
Officer. He, therefore, submitted that the respondent ought to have
impleaded Mr. Konkani as respondent in the appeal. The Tribunal ought
to have dismissed the appeal on the ground that necessary party was not
impleaded in the appeal.
6. In support of submission of Mr. Karwande that teacher belonging
to O.B.C. category cannot be appointed against the post reserved for
S.T. Category, he relied upon the decision of this Court in
Chandrashekhar Vs. Navshakti Vidyalaya, 2010 (5) Mh.L.J. 1, and in
particular paragraph 46 thereof.
7. Despite service, none appears for the respondent. I have
considered the submissions advanced by Mr. Karwande. I have also
perused the material on record. It is not in dispute and is rather a matter
of record that the Management had issued advertisement dated
19.08.1996 inviting applications for filling up the posts of teachers from
qualified candidates. One post requiring qualification of S.S.C. D.Ed.
and pay-scale of Rs.1200-2400 was reserved for S.T. Category. It is not
in dispute and is rather a matter of record that respondent belongs to
O.B.C. Category. A perusal of appointment order dated 27.08.1996
shows that it is issued under Rule 9(5) of the Maharashtra Employees of
Private Schools (Conditions of Service) Rules, 1981 (for short 'Rules'),
which have been framed by the State of Maharashtra in exercise of the
powers conferred by sub-sections (1) and (2) of Section 16 of the
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Maharashtra Employees of Private Schools (Conditions of Service)
Regulation Act, 1977 (for short 'Act'). The appointment order under
Rule 9(5) is required to be issued in the Form in Schedule 'D'. Clauses 2
and 8 of the appointment order dated 27.08.1996 read thus,
"2. Your appointment is purely temporary for a period of 7
months / years from 2/9/96 to 30/4/97 in the leave deputation
vacancy. After expiry of the above period, your services shall
stand terminated without any notice.
8. As per 200 point roster this post is reserved for S.T.
category only. Your appointment is temporary for the period
from 2.9.96 to 30.4.97."
8. A perusal of the above clauses shows that the appointment of the
respondent was made purely on temporary basis for a period of 7
months from 02.09.1996 to 30.04.1997 in the leave deputation vacancy.
After expiry of the said period, the services were to stand terminated
without any notice. As per 200 point roster, the post was reserved for
S.T. Category only, and therefore, appointment for temporary period
from 02.09.1996 to 30.04.1997 was made. Education Officer, Zilla
Parishad, Sindhudurg approved the appointment for the year ended
30.04.1997.
9. The respondent filed appeal against his otherwise oral termination
on 10.06.1997. The Management resisted the appeal by filing a detailed
reply and relied upon the Government Resolutions dated 25.02.1980 and
12.07.1981. The main contention raised by the Management was that
the post was reserved for S.T. Category and the respondent belongs to
O.B.C. Category, which is not permissible. It is material to note that the
Management did not contend in the reply that in the place of the
respondent, some other teacher belonging to S.T. Category was
appointed. Even perusal of the impugned order passed on 28.11.2003
does not indicate that Management raised contention about appointing
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teacher from S.T. Category in the place of the respondent.
10. The moot question is whether the Management could have
appointed teacher belonging to O.B.C. Category on the post, which was
reserved for S.T. Category. Mr. Karwande relied upon the decision of
this Court in the case of Chandrashekhar (supra). Before dealing with
the submission of Mr. Karwande based on this decision, it is necessary
to consider the relevant provisions of the Act and the Rules. Section
4(1) reads thus,
"4. Terms and conditions of service of employees of private
schools: (1) Subject to the provisions of this section, the State
Government may make rules providing for the minimum
qualifications for recruitment (including its procedure), duties,
pay, allowances, post-retirement and other benefits and other
conditions of service of employees of private schools and for
reservation of adequate number of posts for members of the
backward classes :
Provided that, neither the pay nor the rights in respect of
leave of absence, age of retirement and post-retirement benefits
and other monetary benefits of an employee in the employment of
an existing private school on the appointed date shall be varied to
the disadvantage of such employee by any such rules."
11. In so far as controversy in question is concerned, Sections 5(1)
and 5(2) read thus,
"5. (1) The Management shall, as soon as possible, fill in, in the
manner described, every permanent vacancy in a private school
by the appointment of a person duly qualified to fill such vacancy;
(2) Every person appointed to fill a permanent vacancy
(except shikshan sevak) shall be on probation for a period of two
years. Subject to the provisions of sub-sections (3) and (4), he
shall, on completion of this probation period of two years, be
deemed to have been confirmed.
Provided that, every person appointed as shikshan sevak
shall be on probation for a period of three years."
12. Section 4(1) lays down that the State Government may make
rules providing for the minimum qualifications for recruitment
(including its procedure), duties, pay, allowances, post-retirement and
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other benefits and other conditions of service of employees of private
schools.
13. A perusal of sub-section (1) of Section 5 shows that the
Management has to, as soon as possible, fill in the manner described,
every permanent vacancy in a private school by the appointment of a
person duly qualified to fill such vacancy. Sub-section (2) thereof lays
down that the Management has to appoint every person appointed to fill
a permanent vacancy (except shikshan sevak) on probation for a period
of two years. Subject to the provisions of sub-sections (3) and (4), on
completion of the probation period of two years, the person shall be
deemed to have been confirmed.
14. Rule 9 reads thus,
9. Appointment of staff.-
(1) The teaching staff of the school shall be adequate
having regard to the number of classes in the school and the
curriculum including alternative courses provided and the
optional subjects taught therein.
(2) Appointments of teaching staff (other than the
Head and Assistant Head) and those of non-teaching staff in a
school shall be made by the School Committee:
Provided that, appointments in leave vacancies of a short
duration not exceeding three months, may be made by the
Head, if so authorised by the School Committee.
(3) Unless otherwise provided in these rules for every
appointment to be made in a school, for a teaching or a non
teaching post, the candidates eligible for appointment and
desirous of applying for such post shall make an application in
writing giving full details regarding name, address, date of
birth, educational and professional qualifications, experience,
etc., attaching true copies of the original certificates. It shall
not be necessary for candidates other than those belonging to
the various sections of backward communities for whom posts
are reserved under sub-rule (7) to state their castes in their
applications.
(4) The age limit for appointment to any post in a
school shall be as follows, namely :
(a) for an appointment to be made to any post in a
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primary school, a candidate shall not be less than 18 years of
age and more than 28 years of age, and in the case of candidate
belonging to Backward Classes he shall not be more than 33
years of age:
Provided that, upper age-limit may be relaxed in case of
women, ex-servicemen and persons having previous experience
with the previous permission of the Deputy Director.
(b) for an appointment to be made to any post in any
school other than primary school, a candidate shall not be
below the age of 18 years.
(5) A letter of appointment order in the Form in
Schedule "D" shall be issued to a candidate appointed to the
post. A receipt in token of having received the appointment
order shall be obtained from the candidate appointed.
(6) ...
(7) The Management shall reserve 52 per cent of the
total number of posts of the teaching and non-teaching staff for
the persons belonging to the Scheduled Castes, Scheduled
Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes,
Special Backward Category and Other Backward Classes as
follows, namely:-
(a) Scheduled Castes 13 percent;
(b) Scheduled Tribes 7 percent;
(c) De-notified Tribes (A) 3 percent;
(d) Nomadic Tribes (B) 2.5 percent;
(e) Nomadic Tribes (C) 3 percent;
(f) Nomadic Tribes (D) 2 percent;
(g) Special Backward Category 2 percent;
(h) Other Backward Classes 19 percent;
---------------
52 percent.
(8) For the purpose of filling up the vacancies
reserved under sub-rule (7), the Management shall advertise the
vacancies in at least one newspaper having wide circulation in
the region and also notify the vacancies to the Employment
Exchange of the District and to the District Social Welfare
Officer and to the associations or organisations of persons
belonging to Backward Classes, by whatever names such
associations or organisations are called and which are
recognised by Government of the purposes of this sub-rule
requisitioning the names of qualified personnel, if any,
registered with them. If it is not possible to fill in the reserved
post from amongst candidates, if any, who have applied in
response to the advertisement or whose names are
recommended by the Employment Exchange or the District
Social Welfare Officer or such associations or organisations as
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aforesaid or if no such names are recommended by the
Employment Exchange or the District Social Welfare Officer or
such associations or organisations as aforesaid within a period
of one month the Management may proceed to fill up the
reserved post in accordance with the provisions of sub-rule (9).
(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 on an year to year basis by a candidate not
belonging to the Backward Classes."
15. Rule 9(2) lays down that appointments of teaching staff (other
than the Head and Assistant Head) and those of non-teaching staff in a
school has to be made by the School Committee. Sub rule (3) thereof
lays down that Unless otherwise provided in these rules for every
appointment to be made in a school, for a teaching or a non teaching
post, the candidates eligible for appointment and desirous of applying for
such post shall make an application in writing giving full details
regarding name, address, date of birth, educational and professional
qualifications, experience, etc., attaching true copies of the original
certificates.
16. Rule 9(7) lays down that Management shall reserve 52 per cent
of the total number of posts of the teaching and non-teaching staff for the
persons belonging to the - (a) Scheduled Castes - 13%, (b) Scheduled
Tribes - 7%, (c) De-notified Tribes (A) - 3%, (d) Nomadic Tribes (B) -
2.5%, (e) Nomadic Tribes (C) - 3%, (f) Nomadic Tribes (D) - 2%, (g)
Special Backward Category - 2% and (h) Other Backward Classes -
19%.
17. Sub-Rule (8) thereof lays down that for the purpose of filling up
the vacancies reserved under sub-rule (7), the Management shall
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advertise the vacancies in at least one newspaper having wide circulation
in the region and also notify the vacancies to the Employment Exchange
of the District and to the District Social Welfare Officer and to the
associations or organisations of persons belonging to Backward Classes,
by whatever names such associations or organisations are called and
which are recognised by Government of the purposes of this sub-rule
requisitioning the names of qualified personnel, if any, registered with
them. It further provides that if it is not possible to fill in the reserved
post from amongst candidates, if any, who have applied in response to
the advertisement or whose names are recommended by the Employment
Exchange or the District Social Welfare Officer or such associations or
organisations as aforesaid or if no such names are recommended by the
Employment Exchange or the District Social Welfare Officer or such
associations or organisations as aforesaid within a period of one month,
the Management may proceed to fill up the reserved post in accordance
with the provisions of sub-rule (9) of Rule 9. It is relevant to note that
no material is produced by the Management as regards compliance of
sub-rule (8) of Rule 9.
18. A perusal of sub-rule (9)(a) of Rule 9 shows that 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 on an year to year basis by a candidate not belonging to
the Backward Classes. In the present case, the Management did not
produce any material on record to indicate that the candidate from
Scheduled Tribes was not available and candidates from - (1) Scheduled
Castes, (2) De-notified Tribes (A), (3) Nomadic Tribes (B), (4) Nomadic
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Tribes (C), (5) Nomadic Tribes (D) and (6) Special Backward Category
were available. It is not in dispute that the respondent belongs to O.B.C.
In my opinion, once a candidate from other reserved categories was not
available and a candidate from O.B.C. Category was available, in view
of the express language of clause (a) of sub-Rule (9) of Rule 9, the
Management could not have issued appointment letter appointing the
respondent on temporary basis or a year to year basis. The Management
Could have made appointment on temporary basis or a year to year basis
if and only if no person from any of the categories under Sub-Rule (7) of
Rule 9 was available.
19. Rule 10 of the Rules reads thus,
"10. Categories of Employees.- (1) Employees shall be
permanent or non-permanent. Non-permanent employees may
be either temporary or on probation.
(2) A temporary employee is one who is appointed to a
temporary vacancy for a fixed period."
20. Rule 10 lays down the categories of employees. Employees shall
be permanent or non-permanent. Non-permanent employees may be
either temporary or on probation. A temporary employee is one who is
appointed to a temporary vacancy for a fixed period. A conjoint reading
of Sections 4(1), 5(1) and (2) and Rules 9 and 10 leads to an irresistible
conclusion that if there is a temporary vacancy, the management has to
appoint employee on a temporary basis for a fixed period. The
management has to fill in every permanent vacancy in a private school
in terms of Rule 9 of the Rules by the appointment of a duly qualified
person. The management has to appoint a person to fill a permanent
vacancy (except shikshan sevak) on a probation for a period of two
years. Subject to the provisions of sub-sections (3) and (4), the person
on completion of his probation period of two years is deemed to have
been confirmed.
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21. In the case of Chandrashekhar (supra), the learned Single Judge
of this Court referred to the provisions of the Act and Rules and also
considered various judgments. In paragraph 11, it was observed that "in
the case at hand, it has been stated by the learned Counsel for the
respondent that the school had recognition for one year only and so there
was no question of availability of a permanent vacancy. The petitioner
has not shown that the statement that the school had recognition only for
one year at the relevant time is not correct". In paragraph 48, this Court
also noted that the school itself had recognition only for a period of one
year and therefore, it could not be said that there was a permanent
vacancy, though the vacancy to which the petitioner was appointed was
a clear vacancy. In paragraph 13 of that report, judgment of this Court
in Priyadarshini Education Trust and others v. Ratis (Rafia) Bano d/o
Abdul Rasheed and others, 2007 (6) Mh.L.J. 667 was referred and
extracted paragraph 12. Clauses (i), (ii) and (iv) read thus,
(i) "duly appointed, in the manner prescribed" would be an
appointment of a person who is eligible (qualified for the post)
for appointment, who is selected by due process of selection
i.e. by competition amongst all eligible and desirous
candidates, and who is appointed on a permanent vacant post.
In other words, inviting applications, as also holding of
screening tests, enabling all eligible and desirous candidates to
compete for selection and appointment, is a must.
(ii) Once an eligible candidate (duly qualified as required) is
selected by selection process as above, for filling in a
permanent vacancy, there is no option for the management and
it is obligatory on it to appoint such person on probation for a
period of two years. It is neither open for the management to
appoint him for one academic year or any period shorter than
two years probation period, nor it is open for Education Officer
to grant approval for such shorter period. [in fact, in view of the
requirement as in clause (i) above, the process of grant of
approval by Education Officer should begin with examination
of selection process and its validity.]
(iv) The appointment of a person not belonging to reserved
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category, in a post reserved for a particular category, because
the candidate of that category is not available, shall be
absolutely temporary and on an year to year basis, governed by
sub-rule (9) of Rule 9, although in a permanent vacancy."
22. The learned Single Judge thereafter referred to decision of the
Apex Court in Shakuntala Ganpatsa Shirbhate v. Industrial Weaving
Co-operative Society and others, 1994 Mh.L.J. 218 in paragraph 40
and extracted paragraphs 2, 4 and 5 of that decision. In paragraph 4, the
submission advanced on behalf the appellant that the appellant is
entitled to regular appointment in view of Rule 9(9)(a) was noted. It
was further noted that since the appellant is a member of one of the
backward classes referred to in that Rule, she was entitled to a regular
appointment in the very first year when no person belonging to a
Nomadic Tribe was available. After noting this submission in paragraph
5, the Apex Court held that the arguments appear to be well founded.
Admittedly, 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 the available candidate does not belong
to the backward classes. The question, therefore, was whether the
appellant belonged to a backward class. The Apex Court remitted the
matter to the High Court for deciding the question as to whether the
appellant belongs to backward classes on the basis of affidavits or to call
for a finding from the School Tribunal. In the present case, there is no
dispute that vacancy was to be filled in from the S.T. Category and that
no candidate from S.T. Category was available. Respondent No.1
belongs to O.B.C., which is one of the reserved categories under Rule
9(7).
23. In paragraph 42, the learned Single Judge referred to the decision
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of the Division Bench of this Court in D. G. Ruparel College Vs. State,
1999(1) Mh.L.J. 291, which took similar view. In paragraph 43.1,
decision of the Apex Court in Kankavali Shikshan Sanstha Vs. M. R.
Gavali, 2006 (1) Mh.L.J. 713 (SC), which followed the decision in
Shakuntala's case (supra) is referred and extracted paragraph 14
thereof, which is as under:
"Para 14 : The law laid down by this Court on the
interpretation of Rule 9(9)(a) is in our view resolves the
controversy in the present case.
The first respondent was appointed in 1994. The vacancy was
reserved for an ST candidate. At that stage there was no
candidate belonging to ST available. There is no dispute about
the fact that the first respondent belongs to the Hindu Mali
community which is an OBC. In the circumstances, in terms
of the provisions of Rule 9(9)(a) since no other candidate
belonging to ST was available, the first respondent was
entitled to appointment on a regular basis. This Court, in the
above case, held that in the absence of a candidate belonging
to the reserved concerned, the rule enjoins year to year
appointment only if a available candidate does not belong to a
backward class. The respondent belonging as he does to a
backward class was entitled to a regular appointment. The
subsequent appointment of P.B. Lohar, the 3rd respondent
herein again, operates to displace the first respondent because
in any event much prior thereto the first respondent had duly
crystallised the right. In any event, it has not been
demonstrated before this Court that the
3rd respondent was appointed subsequently in the vacancy
created by the termination of the first respondent."
24. In paragraph 44.1, decisions in Jeles Education Society Vs. R. T.
Bhitale, 2006(3) Mh.L.J. 349 and Bhairavnath Shikshan Mandal,
Pune Vs. Raju Haribhau Thombe, 2009 (3) Mh.L.J. 605 were referred.
These decisions followed the Apex Court judgment and it was held that
a candidate belonging to a backward class was entitled to be appointed
against a permanent post meant for another backward class, whose
candidate was not available. In Jeles Education Society (supra), this
Court considered decision of the Apex Court in Hindustan Education
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Society Vs. S. K. Kaleem Gulam Nabi, (1997) 5 SCC 152 and referred
to Rule 9(9)(a) of the Rules and observed thus,
"A harmonious reading of the judgments in Hindustan
Education Society (supra) and Shakuntala G. Shirbhate
(supra) will indicate that a person belonging to an open
category cannot question his appointment made only for a
temporary period against a reserved vacancy. However, when
a suitable candidate belonging to a particular reserved
category is not available and another from the backward
classes is appointed, his appointment cannot be considered to
be a temporary appointment although the appointment letter
stipulates so. In my view, therefore, the judgment of the
School Tribunal which has been impugned in Writ Petition
No.232 of 1993 must be upheld."
25. In paragraph 46, the learned Single Judge observed that petitioner
did not claim that he was appointed as O.B.C. candidate against the
vacancy meant for Scheduled Caste, Scheduled Tribe or Nomadic Tribe
candidate and therefore, there was no question of his appointment being
considered as permanent in view of the provisions of Rule 9(9)(a) of the
Rules.
26. In that case, the learned Single Judge held that the school in
question had recognition only for a period of one year and therefore, it
could not be said that there was a permanent vacancy. Apart from that,
in fact the decision in Priyadarshini Education Trust (supra) and the
decisions referred from paragraph 40 onwards support the respondent.
27. Mr. Karwande relied upon the Government Resolutions dated
25.02.1980 and 12.07.1981. In my opinion, these Resolutions cannot
override the statutory Rules and in particular Rule 9(9)(a). These
Resolutions do not advance the case of the Management in view of the
express provisions contained in Rule 9(9)(a) of the Rules. A perusal of
the impugned order shows that the Tribunal considered provisions of
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Rule 9 (9)(a). The Tribunal also considered the decision of this Court in
Ganesh S. Durafe Vs. Maharashtra Bhatkya Vimukti Jati Shikshan
Prasarak Mandal, 2002 (4) All M.R. 652. The Tribunal, after
considering the provisions of Rule 9 (9)(a) of the Rules held that oral
otherwise termination on 10.06.1997 is not sustainable. Mr. Karwande
was not in a position to show that the findings recorded by the Tribunal
are contrary to material on record or that they are not supported by
material on record. In other words, Management was not in a position
to show that the findings recorded by the Tribunal are perverse. In the
light of the aforesaid discussion, I do not find that the Tribunal
committed any error in passing the impugned order. Petition being
devoid of substance deserves to be dismissed and is accordingly
dismissed. Rule is discharged with no order as to costs.
(R. G. KETKAR, J.)
Minal Parab
