Ku. Kalpana Dadaji Rahate vs Magaswargiya Shikshan Sanstha ...
2021 Latest Caselaw 15328 Bom

                                                    1              215-LPA-445-12.odt

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     NAGPUR BENCH, NAGPUR
                 LETTERS PATENT APPEAL NO.445 OF 2012
                                  IN
                   WRIT PETITION NO. 5279 OF 2009 (D)
 Ku. Kalpana Dadaji Rahate,
 R/o C/o. Shri D. P. Warjurkar,
 Janata Junior College, Pombhurna,
 Dist - Chandrapur.                                          ... APPELLANT
                               VERSUS
 1. Magaswargiya Shikshan Sanstha
    Nagpur, through its Secretary,
    Shri Rajesh Kisan Dongre,
    R/o Gose, Tah. Paoni,
    Dist - Bhandara.
 2. Vinod Education Society,
    through its Secretary,
    Shri Rajesh Kisan Dongre,
    R/o Gose, Tah. Paoni,
    Dist - Bhandara.
 3. Mahatma Jyotiba Fule Vidyalaya,
    Chiroli, Tah - Mul, Dist. Chandrapur,
    through its Head Master.
 4. Education Officer (Sec.)
    Zilla Parishad, Chandrapur,
    Tah. & Dist. Chandrapur.
 5. The State of Maharashtra,
      through its Department of
      Education, Mantralaya,
      Madam Cama Road,
      Mumbai - 440001.                                        ... RESPONDENTS
 -------------------------------------------------------------------------------------------
 Shri P. N. Shende, Advocate for appellant.
 Shri Rohan Deo, Advocate h/f Shri A. A. Naik, Advocate for
 respondent Nos.1 to 3.
 Shri A. S. Fulzele, Additional Government Pleader for respondent
 Nos.4 and 5.
 -------------------------------------------------------------------------------------------




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                                               2            215-LPA-445-12.odt

                               CORAM: A.S. CHANDURKAR AND
                                      G. A. SANAP, JJ.

DATE ON WHICH ARGUMENTS WERE HEARD : 07/10/2021 DATE ON WHICH JUDGMENT IS PRONOUNCED : 26/10/2021

JUDGMENT : (PER G. A. SANAP, J.)

1. In this Letters Patent Appeal, challenge is to the

Judgment and order dated 26/03/2012 passed in Writ Petition

No.5279/2009, whereby the learned Single Judge allowed the

writ petition and set aside the Judgment and order dated

29/09/2009 passed by the learned Presiding Officer of the School

Tribunal granting benefit of reinstatement and other

consequential benefits to the appellant.

The facts leading to the filing of this Letters Patent

Appeal are as follows :-

2. The respondent No.3 - School is managed by

respondent Nos.1 and 2. It is the case of the appellant that she

possessed B. A. B.Ed. qualification and belongs to OBC category.

The selection process for filling up three vacancies of the Assistant

Teachers in the respondent No.3 - School was conducted by the

School Committee. The appellant was selected and appointed as

an Assistant Teacher in a clear and permanent vacancy for period

3 215-LPA-445-12.odt

of two years vide appointment order dated 11/07/1998. The

appellant performed her duties satisfactorily. The proposal for

approval forwarded by the management was returned by the

Education Officer. It is alleged that the Headmistress of

respondent No.3 - School all of a sudden prevented the appellant

from signing the muster roll and working in the school from

25/06/1999. It is the case of the appellant that this act on the part

of Headmistress would tantamount to her termination. The

appellant, therefore, challenged her termination from service

before the School Tribunal.

3. The respondent Nos.1 to 3 filed written statement

and opposed the claim. In sum and substance, the respondents

denied the material facts pleaded by the appellant. According to

the respondents, the appellant was appointed on a post reserved

for VJNT category, though she does not belong to VJNT category.

Her appointment was temporary for period of one year w.e.f.

15/07/1998 till the end of session. This fact was specifically

mentioned in the appointment order. The proposal for approval to

the appointment of the appellant was rejected by the Education

Officer on the ground that there was backlog of Scheduled Tribe

4 215-LPA-445-12.odt

and Nomadic Tribe category candidates. There was no termination

of service of the appellant inasmuch the appointment of the

appellant came to an end by efflux of time. There was no violation

of the provisions of the Maharashtra Employees of Private Schools

(Conditions of Service) Regulation Act, 1977 (hereinafter referred

to as "MEPS Act") and the Maharashtra Employees of Private

Schools (Conditions of Service) Regulation Rules, 1981

(hereinafter referred to as "MEPS Rules").

4. The learned Presiding Officer of the School

Tribunal accepted the claim of the appellant and granted the relief

of reinstatement with other consequential benefits. In the writ

petition filed by the respondents, the order passed by the learned

Presiding Officer of the School Tribunal was set aside and the

appeal filed by the appellant before the School Tribunal was

dismissed by the learned Single Judge. Being aggrieved by this

Judgment and order, the appellant has come before this Court by

filing this Letters Patent Appeal.

5. We have heard learned Advocates for the parties.

Perused the record and proceedings.

5 215-LPA-445-12.odt

6. Learned Advocate for the appellant submitted that

the appellant is belonging to OBC category and therefore, her

appointment against the vacancy reserved for VJNT category

candidate was consistent with the provisions of Rule 9 Sub-rule

(9)(a) of the MEPS Rules. Learned Advocate drawing our

attention towards the appointment order submitted that the

appointment order was for period of two years in a clear and

permanent vacancy. In the submission of learned Advocate on

completion of two years service in the absence of termination of

service after one year of the appointment, the appellant could

have attained the status of deemed confirmed employee of the

respondents. Learned Advocate submitted that the service of the

appellant was wrongly terminated without following the

procedure laid down under Rule 28 of the MEPS Rules. Learned

Advocate further submitted that the mandatory procedure was

followed before the appointment of the appellant for period of two

years. Learned Advocate submitted that since the appellant

belongs to OBC category, she was considered for appointment

against the vacancy reserved for Other Backward Class category

candidate and as such, it was according to the MEPS Act and

MEPS Rules. Learned Advocate by taking us through the judgment

6 215-LPA-445-12.odt

of the learned Single Judge submitted that the learned Single

Judge has not properly appreciated the material on record and as

such came to a wrong conclusion. In support of his submission,

learned Advocate for the appellant has placed reliance on

following three decisions :-

i] Writ Petition No.2767/1996 (Sharad Balaji Mankar Vrs. Presiding Officer, School Tribunal, Amravati and others) dated 06/11/2006.

ii] 1994(1) Mh.L.J. 218 (Shankutala Ganpatsa Shirbhate Vrs. Industrial Weaving Co- operative Society and others.

iii] 2013(2) Mh.L.J. 713 (Ramkrishna Chauhan Vrs. Seth D. M. High School and others).

submitted that the claim of the appellant that she was appointed

against the vacancy reserved for VJNT category candidate cannot

be accepted inasmuch as there is no pleading to that effect in the

Appeal Memo filed before the School Tribunal. Learned Advocate

submitted that in the Appeal Memo, the appellant has simply

stated that she belongs to OBC category. In the submission of

learned Advocate, therefore, this pleading was not found sufficient

7 215-LPA-445-12.odt

to accept the claim of the appellant that being OBC candidate, she

was considered against the vacancy reserved for VJNT category

candidate. Learned Advocate relying upon the appointment order

submitted that the appointment was on temporary basis for one

academic session. Learned Advocate submitted that the

management of the respondent had right to make appointment on

temporary basis against the permanent vacancy because the

candidate belonging to VJNT category was not available. Learned

Advocate taking us through the contents of the appointment order

pointed out that on the basis of same, the appellant could not

attain the status of deemed confirmed employee. In short, learned

Advocate supported the Judgment passed by the learned Single

Judge.

8. In order to satisfy ourselves with the correct factual

position, we have minutely perused the record and proceedings.

The advertisement published for undertaking process of

appointment is at page No.11. It was specifically mentioned that

the candidates belonging to Open, OBC and VJNT Category would

be considered on priority basis. The vacancies were advertised.

The appointment order is dated 11/07/1998. The appellant as

8 215-LPA-445-12.odt

well as respondent Nos.1 to 3 have laid emphasis on Clause No.2

of the appointment order to substantiate the respective

contentions. It would, therefore, be necessary to see Clause No.2

of the appointment order. It is undisputed that this appointment

order is as per the proforma prescribed in Schedule-D of the MEPS

Act. The perusal of the appointment order would show that the

Clause No.2 has two parts. The first part deals with the

appointment purely on temporary basis in the leave / deputation

vacancy. It clearly provides that on expiry of period of the

appointment, the services of the candidate shall stand terminated

without any notice. The second part of Clause No.2 provides for

the appointment on probation for period of two years. It is,

therefore, crystal clear that the first part of Clause No.2 deals with

the appointment on temporary basis and the second part deals

with the appointment on probation for period of two years. In this

case, first part of Clause No.2 is relevant inasmuch as while

making the appointment, duration of appointment and the nature

of the appointment has been specifically mentioned. Prima facie

perusal of the appointment order would, therefore show that the

appointment of the appellant was purely on temporary basis.

While mentioning the duration, it was stated in words that it was

9 215-LPA-445-12.odt

for two years. However, while mentioning the specific period, it

was stated that it would be from 15/07/1998 to the end of session

in the leave / deputation vacancy. So in words, it was stated that

the appointment was for period of two years. While mentioning

the specific period, it was mentioned that it was from 15/07/1998

till the end of the session. Even if it is assumed for the sake of

argument that it was for period of two years and not for one

academic session, in our opinion, it would not make much of

difference. The relevant part of the appointment order which has

bearing on the claim of the appellant clearly indicates that she was

appointed purely on temporary basis in the leave / deputation

vacancy. It is the case of the appellant that at the end of academic

session 1998-1999, her services were terminated. It would,

therefore prove that the appellant did not work for period of two

years. It is the case of the respondents that the appointment of the

appellant was for one academic session on temporary basis and

therefore, it came to an end by efflux of time at the end of the

academic session 1998-1999. On the basis of this appointment

order, it is clear that the appellant was appointed on temporary

basis even though the vacancy was clear and permanent. The

appellant was not appointed on probation for period of two years.

10 215-LPA-445-12.odt

9. The appellant relying upon the provisions of Rule 9

Sub-rule (9) contended that since she belongs to OBC category,

her appointment on the post reserved for VJNT category was

permissible as per this provision. It is undisputed that the

appellant belongs to OBC category. It is also undisputed that the

vacancy was reserved for VJNT candidate. We have no hesitation

to conclude that as per Rule 9 Sub-rule (9) of the MEPS Rules, the

post reserved for one backward class can be filled in by the

candidate belonging to other backward tribe, category or class for

which the post is reserved. Whether the provisions of Rule 9 Sub-

rule(9) were invoked or not at the time of appointment is question

of fact and has to be decided on the basis of the pleadings and the

evidence brought on record. It is pertinent to mention that the

appointment order of the appellant dated 11/07/1998 is woefully

silent on this point. It is pertinent to mention that if the appellant

had been appointed against the vacancy reserved for VJNT

category, then there ought to have been specific mention in the

appointment order. Similarly, there ought to have been

contemporaneous documentary evidence to prove the same.

Simply because of the fact that the appellant belongs to OBC

11 215-LPA-445-12.odt

category would not ipso facto lead us to draw an inference to

accept the contention of the appellant.

10. The appellant was required to plead and prove this

fact. Perusal of the appeal filed before the School Tribunal would

show that this fact has not been specifically pleaded by the

appellant. The appellant has simply stated that she belongs to OBC

category. In the facts and circumstances, therefore, the contention

of the appellant that she was appointed on probation for period of

two years cannot be accepted. Similarly, the appellant has failed to

establish that being OBC category candidate, she was appointed

against the clear vacancy reserved for VJNT category candidate. In

the absence of pleadings and the proof, this contention cannot be

accepted. It is the case of the respondents that the appellant was

appointed for period of one year and on expiry of period of one

year, her appointment came to an end. We have no reason to

discard and disbelieve this statement in the teeth of the facts

crystallized on the basis of appointment order. In our opinion,

therefore, there was no need to invoke the provisions of Rule 28

of the MEPS Rules in this case.

12 215-LPA-445-12.odt

11. On the basis of the facts and evidence, the

appellant is not entitled for the relief. It would be necessary to

consider the Judgments relied upon by the learned Advocate for

the appellant. In the case of Sharad Balaji Mankar Vrs. Presiding

Officer, School Tribunal Amravati and others in Writ Petition

No.2767/1996, in the similar set of facts, learned Single Judge has

held that the essential facts that if the vacancy is reserved for any

of the backward class and the candidate from one of the backward

classes is appointed against the said vacancy, then in that event,

he must specifically make plea and prove the said fact. It is held

that in the absence of specific pleadings to that effect consistent

with the mandate of law, such claim cannot be accepted. In the

case of Shakuntala Ganpatsa Shirbhate Vrs. Industrial Weaving Co-

operative Society and others, reported in 1994 (1) Mh.L.J. 218,

the Hon'ble Supreme Court has held that in case of non-

availability of candidate from one backward class category, the

candidate from another category specified in Rule 9(7) of the

MEPS Rules can be appointed. The facts in the case before the

Hon'ble Supreme Court and the facts of the case before us are

identical. The Hon'ble Supreme Court had, therefore, remanded

the matter back to the High Court for deciding the matter afresh

13 215-LPA-445-12.odt

by granting an opportunity to the parties to amend the pleadings

to incorporate the necessary facts consistent with the law.

12. Learned Advocate for the appellant as well as

learned Advocate for respondent Nos.1 to 3 placed reliance on

Full Bench decision of this Court in the case of Ramkrishna

Chauhan Vrs. Seth D.M. High School and others, reported in

2013(2) Mh.L.J.713. Learned Advocate for the appellant relied

upon the observations made in Paragraph Nos.13, 16, 17, 21 and

23 of this decision. Relying upon the Judgment, learned advocate

for the appellant submitted that since the vacancy was clear and

permanent, respondent nos.1 to 3 were not permitted to make the

appointment on temporary basis and if the management wanted

to make appointment on temporary basis, the reasons ought to

have been recorded for doing so. Learned Advocate for

respondent Nos.1 to 3 relying upon this decision submitted that

the management is not without powers to appoint a candidate on

temporary basis against the clear vacancy. In this case, the Full

Bench has held that Section 5 Sub-section (5) of MEPS Act

provides for the appointment of a person on temporary vacancy

and the manner of filling of that vacancy. It is held that this

14 215-LPA-445-12.odt

provision cannot be construed to mean as forbidding the

management from making contractual or temporary appointment

in respect of permanent vacancy, if the situation so warrants. It is

further held that if the parties accept the terms and conditions

stipulated in the appointment order, later on, it is not open to the

employee to challenge that appointment being contrary to the

rules or on the ground that the terms and conditions stipulated

therein were not legally valid. It is held that if the appointment

order mentions that the appointment is on temporary basis for a

limited period then it is not open to the employee to assume that

she / he was appointed on probation against the permanent

vacancy nor it is open to the School Tribunal or the Court of Law

to assume that fact. In our opinion, the law laid in this Full Bench

decision supports the contention of respondent Nos.1 to 3, in view

of the fact that the appointment order clearly states that it was a

temporary appointment in leave / deputation vacancy.

13. In the case of Hindustan Education Society and

another Vrs. Sk. Kaleem Sk. Gulam Nabi and others, reported in

(1997) 5 SCC 152 relied upon by the learned Advocate for the

respondent Nos.1 to 3, the Hon'ble Supreme Court has held that if

15 215-LPA-445-12.odt

the appointment order clearly mentions that the appointment is

purely temporary in a clear vacancy, then in that event, it cannot

be construed as appointment on probation. It is held that after

expiry of temporary period, the services shall stand terminated

without any notice. In this case, the appointment order was

reproduced. The contents of the appointment order in the

reported decision and the contents of the appointment order

before us are identical.

The decision in the case of Bhartiya Gramin

Punarrachana Sanstha Vrs. Vijay Kumar and others, reported in

(2002) 6 SCC 707 is relied upon by the learned Advocate for the

respondents to substantiate his submissions that in view of express

contents of the appointment order and the fact that the services

were terminated before completion of two years period, the

appellant would not become a deemed permanent employee. In

this case, it is held that the provisions relating to deemed

confirmed employee on completion of statutory period of

probation of a person who was put on probation consequent to his

appointment in a permanent vacancy would not be applicable to a

person whose services were terminated before completion of

16 215-LPA-445-12.odt

statutory probation period and who was appointed only for a

specific period without being put on probation. In this case before

us, the appellant was appointed on temporary basis. Besides,

according to the appellant, though the order mentions that she

was appointed for period of two years, she was terminated within

one year. It is therefore, very difficult to accept the contention of

the appellant that she became a deemed permanent employee.

On the point of absence of specific pleading and the

consequences of the same, learned Advocate has relied upon the

decisions in the case of Vandana Pandurang Patle Vrs. Kalpana

Shikshan Sanstha and others, reported in 2017(6) Mh.L.J. 696

and in the case of Maharashtra Shikshan Prasarak Mandal and

another Vrs. Kawadu Pandurangji Ghutake and another, reported

in 2014(5) Mh.L.J. 151. It is held that if a party wants to show

that he or she has right to a post and therefore, wants to rely upon

Rule 9 Sub-rule (9)(a), he or she ought to specifically plead the

necessary facts pointing out that in spite of efforts made by the

management, the candidate from a particular Tribe / Caste for

which the post was reserved was not available and therefore,

against the said vacancy, he or she has been appointed.

17 215-LPA-445-12.odt

14. In our opinion, the law laid down in the Judgment

relied upon by the learned Advocate for the appellant does not

extend helping hand to the appellant. On the other hand, in the

background of the proved facts, the proposition of law laid down

in the Judgments, relied upon by the learned Advocate for the

respondents squarely apply to this case. Even the decision of the

Full bench of this Court in the case of Ramkrishna Chauhan

(supra) is of no help and assistance to the case of the appellant.

15. In view of the facts and circumstances and settled

position in law, we are of the opinion that there is no substance in

the appeal. The submissions advanced by the learned Advocate in

the aforesaid background cannot be accepted. The submissions

advanced by the learned Advocate for the respondent Nos.1 to 3

deserve acceptance. The learned Single Judge in our opinion

while dismissing the appeal filed by the appellant before the

School Tribunal has not committed any mistake. On the basis of

material placed on record, the view taken by the learned Single

Judge is the only possible view in the matter. The appeal,

therefore, deserves to be dismissed. Hence, the following order :-

                                           18               215-LPA-445-12.odt

                                   ORDER


         I]     The Letters Patent Appeal stands dismissed.


         II]    In the peculiar facts and circumstances of the case,
         the parties shall bear their own costs.



               (G. A. SANAP, J.)            (A.S. CHANDURKAR, J.)



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