Janta Shikshan Prasarak Mandal ... vs Anil Gangadharrao Totawad And ...
2022 Latest Caselaw 5351 Bom

                                                             930 WP 5996 22.odt

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                        930 WRIT PETITION NO.5996 OF 2022

      JANTA SHIKSHAN PRASARAK MANDAL UMARDARI THROUGH ITS
          PRESIDENT SHIVAJI NAGORAO JADHAV AND ANOTHER
                                  VERSUS
             ANIL GANGADHARRAO TOTAWAD AND ANOTHER
                                     ...
                Advocate for Petitioners : Mr. Salunke V. D.
          Advocate for Respondent No. 1 : Mr. P. R. Katnwshwarkar.
             AGP for Respondent No. 2 : Mr. S. N. Morampalle.

                               CORAM       : MANGESH S. PATIL, J.

                               DATE        : 14.06.2022.


 PER COURT :

The petitioner is impugning the judgment and order passed by the School Tribunal in an appeal preferred by the respondent No. 1 under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act,1977, setting aside his termination and directing reinstatement with back wages.

2. I have heard the learned advocates Mr. Salunke for the petitioner and Mr. Katneshwarkar for the respondent No. 1 as also the learned A.G.P. It is quite apparent that the dispute revolves around the fact as to under which category the respondent No. 1 was appointed as a teacher.

3. The parties are at two poles. The petitioner claims that he was appointed against a reserved category vacancy which the respondent No. 1 is disputing. Prima facie the parties are not producing the initial public notice whereby the applications must have been invited for appointment to the post, to set at naught the dispute. They are also coming with apparently inconsistent stands. Appointment order was also apparently not produced any where and for the first time it seems to have been

930 WP 5996 22.odt placed at Exh. 'A' in this petition. The appointment order though mentions about his tribe, it does not specifically show that he was appointed against a vacancy reserved for that category.

4. It appears that the parties were before the School Tribunal in Appeal No. 257/1999 in the form of an appeal preferred by the respondent No. 1. Admittedly the two sides had reached a settlement and terms of the settlement were duly certified and the appeal was disposed of on that basis. Even this settlement is of no help in ascertaining as to whether the appointment of the respondent no. 1 was to be under reserved category or otherwise. The terms were also not happily worded. Though it was mentioned that the petitioner management would appoint the respondent No. 1 on a post which had fallen vacant on account of retirement of one Mr. P.G. Deshmukh, the parties seem to have conveniently agreed also to the arrangement that the seniority of the respondent no. 1 was to be counted from his initial date of appointment dated 16.06.1997. Though it was agreed that he would not be entitled to claim the back wages, the parties were comfortable if the State Government was ready to take up the burden.

5. The learned advocate Mr. Salunke for the petitioner would submit that the approval granted by the Education Officer dated 21.03.1997 has been placed on record at page 62 but erroneously its reverse side has not been printed which contains the table referring to the caste of the respondent No. 1 as Munnerwaralu. As pointed out by the learned advocate Mr. Katneshwarkar even this communication does not specifically mention that the appointment was against a reserved category post and merely mentions the name of his tribe.

6. Be that as it may, as has been cursorily mentioned herein above there is no concrete record to emphatically point out that the respondent No. 1 was appointed against a particular category.

930 WP 5996 22.odt

7. The fact remains that in Writ Petition No. 1430/2010 the petitioner management had approached this Court. As the order dated 04.05.2010 (Exh. E) reads the petitioner management was allowed to withdraw the writ petition however the submission of its learned advocate was recorded to the effect that the respondent No. 1 who was a respondent No. 1 in that petition also may have to submit a caste claim certificate and based on that the petitioner-management was expected to forward the proposal. The order reads as under :

"1. Heard learned Counsel.

2. The petitioner's counsel seeks withdrawal, under instructions. He, however, submits that requirement the respondent No. 1 being member of Scheduled Tribe will have be satisfied by the respondent in view of the terms of compromise and respondent No. 1 may submit relevant caste claim certificate before the Education Officer directly. The petitioner is ready and willing to appoint the respondent No. 1, if approval is granted. The approval will have to be forwarded by the petitioner. The petition is disposed of as withdrawn accordingly".

8. It is pertinent to note that this order was apparently passed in presence of the learned advocate for the respondent No. 1. This would clearly demonstrate that irrespective of the facts, he had allowed these observations to stand right from the year 2010. If at all he has not agreeable and comfortable with these observations and when the petitioner management was insisting that he obtained a caste validity certificate, the respondent No. 1 could have easily approached this court and sought a clarification.

9. As has been mentioned earlier, in the written statement filed by the petitioner-management in Appeal No. 257/1999 its stand was that

930 WP 5996 22.odt the respondent No. 1 was not appointed against a reserved category post but it is now taking a contrary stand. Same is the case with the respondent No. 1. In Appeal No. 257/1999 he was claiming to have been appointed against a post reserved for ST candidate which stand he now intends to resile from.

10. It is important to note that the respondent -Education Officer seems to have filed an affidavit in Writ Petition No. 2699/2021 and in that affidavit he had mentioned that the appointment of the respondent No. 1 was against a reserved category to which temporary approval was accorded.

11. In view of such state of affairs, in my considered view the Writ Petition deserves to be admitted. Rule.

12. There shall be stay to the operation of the order under challenge till the Writ Petition is decided finally.

13. Call record and proceeding.

14. Final hearing of the Writ Petition is expedited.

15. The learned A.G.P. shall see to it that the concerned Education Officer files an affidavit specifically mentioning as to the category under which the respondent No. 1 was appointed and the approval was granted.

16. Stand over to 27.07.2022.

(MANGESH S. PATIL, J.) mkd/-