Bombay High Court
Ku. Vandana Pandurang Patle vs Kalpana Shikshan S. Dhanegaon And ... on 5 September, 2017
Bench: B.R. Gavai
LPA.305.09
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
LETTER PATENT APPEAL NO. 305 OF 2009
(ARISING OUT OF WRIT PETITION NO. 861/97)
Ku. Vandana Pandurang Patle,
aged about 36 years, R/o
Tahsil Tumsar, Dist. Bhandara. .... APPELLANT
// VERSUS //
1] Kalpana Shikshan Sanstha,
Dhanegaon, through its Secretary,
Sau. Seema Pardhi, r/o Tumsar,
District Bhandara,
2] Shri K.A. Chaudhary, President
Kalpana Education Society,
Dhanegaon, r/o Tumsar,
District Bhandara.
3] Headmaster, Gram Vikas High
School, Hardoli (Sihora), Tahsil
Tumsar, Dist. Bhandara,
4] Education Officer, Zilla Parishad,
Bhandara,
5] Presiding Officer, School Tribunal,
Nagpur. .... RESPONDENTS
Mr. Anil S. Mardikar, Senior Counsel with Mr. S.G. Joshi, Advocate for
appellant,
Mr. R.L. Khapre, Advocate with Mr. Barlinge, Advocate for respondent
nos. 1 to 3.
Mr. A.M. Balpande, A.G.P. for respondent no. 4.
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LPA.305.09
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CORAM : B.P. DHARMADHIKARI & ARUN D. UPADHYE, JJ.
DATED : SEPTEMBER 5, 2017.
ORAL JUDGMENT (PER B.P. DHARMADHIKARI, J.).
1] Heard the learned Counsel for the parties.
2] We have perused judgment delivered by School Tribunal in
Appeal No. STN/176/95 on 19.2.1997. There because of three years'
service put in by the present appellant from 1992-93 onwards and
provisions of Rule 9(9)(a) of Maharashtra Employees of Private
Schools (Conditions of Service) Rules, 1981 (hereinafter referred to
as "1981 Rules") an inference of proper selection and, therefore, right
to post has been drawn. Accordingly, a relief of reinstatement was
given by setting aside the order of termination dated 30.3.1995.
3] Management approached learned Single Judge of this
Court in Writ Petition under Articles 226 & 227 of the Constitution of
India. That Writ Petition No. 861/97 has been allowed on 16/18
March, 2009. Learned Single Judge has found material on record
insufficient to take recourse to Rule 9(9)(a) of 1981 Rules. Thus,
judgment of School Tribunal was quashed and set aside. The learned
LPA.305.09
Single Judge has also found that respondent before it worked only in
1992-93 and thereafter in 1994-95. In other words, she was not in
employment in 1993-94.
4] This judgment of learned Single Judge has been
questioned by appellant in the present appeal.
5] According to Mr. Anil S. Mardikar, learned Senior Counsel
for the appellant, provisions of Rule 9(9)(a) permit management to
appoint OBC candidate like present appellant on permanent basis if a
candidate belonging to particular reserved category is not available.
He submits that here after proper selection process, the appellant was
appointed. Advertisement specified vacancy to be clear and
permanent. Hence, initial appointment itself was on probation and,
therefore, after completion of period of two years of service at the end
of academic year 1993-94, appellant attained permanency. Hence,
her termination by order dated 30.3.1995 which is in third year is
unsustainable and any such termination could have been only after
proper departmental enquiry.
6] Mr. R.L. Khapre, learned Advocate for respondent nos. 1
LPA.305.09
to 3, submits that in appeal filed before School Tribunal, no plea of
recruitment under Rule 9(9)(a) was raised. School Tribunal merely
because provision exists has taken recourse to it without ascertaining
necessary facts. He invites attention to observations of learned
Single Judge to urge that after due application of mind the finding of
lack of material to support such recourse and its validity is recorded.
He contends that even material demonstrates that appellant was not
employed in 1993-94 and during that period one Mr. Hedau had been
working. He contends that this view taken by learned Single Judge
does not call for any interference.
7] We have with the assistance of respective Counsel
perused the judgment delivered by School Tribunal as also by learned
Single Judge. Rule 9(9)(a) of 1981 Rules is an exception and it
permits filling in of a teaching post reserved for a particular caste/
tribe by a person belonging to other Backward Class/Tribe, if the
vacancy could not be filled in by taking recourse to Rule 9(8).
8] The learned Single Judge has correctly appreciated the
controversy and recorded a conclusion that material on record was
insufficient to demonstrate such a failure on part of management to fill
LPA.305.09
in teaching post through a particular reserved Caste/Tribe candidate.
9] Even if contention of petitioner is accepted to be correct,
there were three advertisements, i.e. in the year 1992-93, 1993-94
and 1994-95. In each year appellant applied and was selected.
Approval given to her employment, therefore, also would have been in
terms of appointment order, i.e. on year to year basis. On the
strength of this material, inference by recourse to Rule 9(9)(a) is not
possible.
10] The learned Single Judge has also found that if regularly
appointment orders were issued to appellant, contention that only in
year 1993-94 such an order was not issued to her cannot be
accepted. We in this situation do not find any jurisdictional error or
perversity.
11] If the appellant wanted to show that she had a right to post
and, therefore, wanted to rely upon Rule 9(9)(a), she ought to have
specifically pleaded necessary facts pointing out that in spite of efforts
made by management, the candidate from a particular Tribe/Caste for
which post was reserved did not become available. This contention
LPA.305.09
then could have been evaluated by School Tribunal on the strength of
record and then an inference of the recourse to that Rule could have
been drawn.
12] We in this situation, find no case made out warranting
intervention in L.P.A. L.P.A. is accordingly rejected. No costs.
JUDGE JUDGE.
J.
