Bhartiya Buddha Dhamma Dyan ... vs Presiding Officer School ...
2017 Latest Caselaw 8354 Bom

 Judgment.                                                      lpa37.10
                                  1



       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.

Judgment. lpa37.10

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.

Judgment. lpa37.10

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.

--------------------------

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.

--------------------------

                               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

Judgment. lpa37.10

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

Judgment. lpa37.10

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

Judgment. lpa37.10

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

Judgment. lpa37.10

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

Judgment. lpa37.10

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

Judgment. lpa37.10

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.

Judgment. lpa37.10

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

Judgment. lpa37.10

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.

Judgment. lpa37.10

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

Judgment. lpa37.10

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

Judgment. lpa37.10

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

Judgment. lpa37.10

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

Judgment. lpa37.10

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

Judgment. lpa37.10

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].

Judgment. lpa37.10

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

Judgment. lpa37.10

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

Judgment. lpa37.10

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.