Bombay High Court
Milind R Kolambkar vs The Secretary, Yusuf Meherally ... on 15 December, 2023
Author: Madhav J. Jamdar
Bench: Madhav J. Jamdar
2023:BHC-AS:39878
919-WP-4123-2005.doc
Arjun
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.4123 OF 2005
Milind Raoji Kolambakar ...Petitioner
V/s.
The Secretary, Yusuf Meherally Memorial ...Respondents
Education Society & Ors.
WITH
INTERIM APPLICATION (ST) NO.6676 OF 2023
IN
WRIT PETITION NO.4123 OF 2005
Milind R. Kolambakar ...Applicant
In the matter between
Milind Raoji Kolambakar ...Petitioner
V/s.
The Secretary, Yusuf Meherally Memorial ...Respondents
Education Society & Ors.
Mr. Mihir Desai, Senior Counsel a/w Ms. Rishika Agarwal, for
the Petitioner.
Ms. Anupama Shah, for Respondent Nos.1 & 2.
Mr. P. G. Sawant, AGP, for the Respondent-State.
CORAM : MADHAV J. JAMDAR, J.
DATED : DECEMBER 15, 2023
JUDGMENT:
1. Heard Mr. Mihir Desai, learned Senior Counsel appearing
for the Petitioner, Ms. Anupama Shah, learned Counsel appearing
919-WP-4123-2005.doc
for Respondent Nos.1 and 2 and Mr. Sawant, learned AGP for the
Respondent-State.
2. The Petitioner is challenging the Order dated 13th June
2005 ("impugned Order") passed by the learned Presiding Officer,
School Tribunal Mumbai ("Tribunal") in Appeal No.98 of 2000 .
By the impugned Order, the learned Tribunal dismissed the
Appeal filed by the Petitioner against the oral termination order
dated 13th June 2000 of service of the Petitioner.
3. Mr. Desai, learned Senior Counsel appearing for the
Petitioner tenders list of dates and submitted that w.e.f. 13th
June 1996 the Petitioner as an Assistant Teacher is continuously
in service of the Respondent No.1. The said list of dates is
reproduced hereinbelow for ready reference:
Sr. Date Particulars Page Nos.
No.
1. 12.04.1996 On this date, there was an 83-84
advertisement in the Loksatta, after
which the Petitioner applied for the post
of Assistant Teacher.
2. 13.06.1996 The Petitioner was appointed as a Full 84-86
Time Assistant Teacher against a clear,
vacant and permanent post on the basis
of an advertisement and selection.
3. 11.03.1997 Department granted Petitioner approval 82
to the post of Petitioner for the period of
13.06.1996 to 30.04.1997
4. 29.03.1997 The Petitioner was issued a termination 16
order w.e.f. 30.04.1997
5. 30.04.1997 Advertisement in the Loksatta for the
same post for the year 1997-1998
6. 30.04.1997 Petitioner submitted his application to 85-86
be considered for the post as per the
advertisement
7. 1997-1998 The Petitioner was reinstated for his 87
services in the said year vide an
919-WP-4123-2005.doc
appointment order
8. 15.01.1998 The Petitioner was granted approval 90
from the 13.06.1997 to 13.04.1998
9. 25.04.1998 The Petitioner was issued a letter of
termination terminating his services
w.e.f. 01.05.1998
10. 26.06.1998 The Petitioner was asked to continue his
services.
11. 30.03.1999 The Petitioner got approval for the 92
period of 26.06.1998 to 29.04.1999
12. 30.03.1999 The Petitioner was issued a letter of
termination terminating his services
w.e.f. 30.04.1999
13. 13.06.1996 to The Petitioner was placed in D.Ed. scale.
30.10.1999
14. 01.03.2000 The Petitioner was granted approval 93
from 14.06.1999 to 30.10.1999.
15. 16.11.2000 The Petitioner was granted approval 94
from 11.12.1999 to 29.04.2000
16. 1999-2000 The Petitioner was again continued in
service.
17. 22.11.1999 to The Petitioner was placed in B.Ed. scale 19
29.04.2000 and his salary was being paid by the
government
18. 13.06.2000 As no termination order was issued to
the Petitioner for the academic year,
1999-2000, he approached the school as
usual to resume services on 13.06.2000
but Petitioner was orally removed from
service.
19. 11.07.2000 Aggrieved by the oral termination, the 20
Petitioner approached the School
Tribunal, Mumbai by filing an appeal
being Appeal No.98 of 2000.
20. 28.07.2000 The Management filed a reply to the 36
appeal of the Petitioner contending that
the post was reserved for ST category. It
also contended that in the year 1999
Shri. Ambolkar belonging to OBC
category had become surplus in another
school and therefore he came and
replaced the Petitioner and Petitioner in
turn was placed on another post namely
B.A., B.Ed.
21. 24.01.2001 Interim order passed in favour of the 29
Petitioner, reinstating him and allowing
him 50% of his salary.
22. January 2002 Petitioner filed a rejoinder and pointed 50
out that in 1996 itself even according to
the education department, he was
appointed against an open post and
therefore ought to have been treated on
919-WP-4123-2005.doc
probation and should have been
confirmed by the year 1998. He also
contended that even assuming that the
post was for ST category candidate, the
Petitioner ought to have been continued
on regular basis in view of Rule 9(9)(A)
of the Maharashtra Employees of
Private Schools Act. This is also in view
of the decision of the Supreme Court in
Shakuntala Shribhate's case.
23. 04.04.2002 Affidavit was filed by Respondent Nos.3 43
and 4 wherein they mentioned that the
Petitioner was appointed on open
category post.
24. 13.06.2005 The school tribunal passed a judgment in 56
which the appeal filed by the Petitioner
was dismissed and the stay order was
vacated.
25. 18.06.2005 Hence, aggrieved by the judgment, the
petitioner filed the Writ Petition No.4123
of 2005
26. 05.08.2005 Petitioner's Writ Petition was admitted
and further this Hon'ble Court was
pleased to grant interim reliefs in terms
of prayer clause (c), and allowed the
Petitioner to continue as full time
assistant teacher and ordered for him to
be paid full wages.
27. 2010 Petitioner filed Civil Application bearing
No.670 of 2010 as the Respondents
failed to give the Applicant the benefit of
the 6th Pay Revision, but during the
pendency of the Applicaiton, his pay was
revised and he was paid the arrears.
28. 02.02.2023 The Petitioner filed an Interim
Application bearing Stamp No.6676 of
2023, praying for arrears of 7th Pay
revision from 01.01.2016 to March 2019,
and to get approval as a Senior Scale
Assistant Teacher w.e.f. 13.06.2008 and
the consequential benefits accruing from
it.
29. 24.07.2023 The Respondent No.4 filed an affidavit in
reply to the aforementioned interim
application.
30. 19.08.2023 The Respondent No.1 filed an affidavit in
reply
4. It is the submission of Mr. Desai, that the learned Tribunal
has not granted the relief sought in the Appeal as the contention
raised by Respondent Nos.3 to 5 is that the said post is reserved
919-WP-4123-2005.doc
for candidates belonging to the Scheduled Tribes ("ST") category
and, therefore, Petitioner's services cannot be approved. He
submitted that the said submission raised on behalf of the
Respondents is contrary to the position on record. He relied on
the decision of the Supreme Court in the case of Kankavali
Shikshan Sanstha v. M. R. Gavali1. It is his submission that the
Petitioner belongs to the Other Backward Classes category
("OBC"). Although advertisements for recruitment to the said
post of Assistant Teacher were issued from time to time,
candidates belonging to ST category did not apply and therefore
Petitioner's service should have been approved.
5. Ms. Shah, learned Counsel appearing for Respondent Nos.1
and 2 pointed out the averments in the Affidavit filed by the
Education Sub-Inspector in said Appeal No.98 of 2000 and
submitted that, the Affidavit in effect confirms the fact that
candidate belonging to the ST category as well as Schedule Caste
category ("SC") could not be found and therefore the Petitioner
who belongs to OBC category was appointed. She, therefore,
supported the case of the Petitioner.
6. Mr. Sawant, learned AGP pointed out the contentions raised
in the Affidavit-in-Reply dated 24th July 2023 filed in IA (St)
No.6676 of 2023 in this Writ Petition. He submitted that
1 (2005) 13 SCC 638
919-WP-4123-2005.doc
appointment of the Petitioner is not in accordance with law and
Roaster and also not as per the procedure mentioned in said
Rules. The Appointment of the Petitioner is a violation of the Rule
No.9(7), (8) and (9) of the said Rules. He submitted that before
publishing an advertisement for any post approval of Education
Department is required to be obtained. In this case no such
approval is obtained by the educational institute. The Petitioner is
shown to have been working in the said institute on a temporary
basis since 1996 without formal approval order. However, he is
working and getting a regular salary in view of the interim relief
of this Hon'ble Court in Writ Petition dated 5th August 2005. He
submitted that the appointment of the Petitioner, as an open
category candidate having been made on a post reserved for
schedule tribe, in the absence of any de-reservation having taken
place cannot be approved.
7. The factual position on record clearly shows that on 13th
June 1996 the Petitioner was initially appointed as a full time
Assistant Teacher against a clear, vacant and permanent post on
the basis of an advertisement and selection. The said
advertisement dated 12th April 1996 which is at page 83 of the
Writ Petition. The same clearly shows and mentions that priority
will be given to a candidate belonging to the category of SC and
ST. It is also an admitted position that, thereafter, again an
919-WP-4123-2005.doc
advertisement was issued on 30th April 1997 in daily Loksatta.
The factual position on record clearly shows that although the
advertisements were issued in daily Loksatta specifically
mentioning that priority would be given to the SC and ST
candidate, the Respondent No.1 could not get any candidate
belonging to the category of SC or ST. It is also important to note
that the said appointment is approved by the Education
Department of the State of Maharashtra.
8. The Rule 9(9)(a) of the Maharashtra Employees of Private
Schools (Conditions of Service) Rules, 1981 ("said Rules") is as
follows.
"9. Appointment of staff.--
(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 a year
to year basis by a candidate not belonging to the
Backward Classes."
Thus, it is specifically provided in said Rule 9 (9)(a) that, in case
it is not possible to fill the vacancy of a teaching post reserved for
a person belonging to a particular category of Backward Classes,
919-WP-4123-2005.doc
the said vacancy may be filled 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 said
vacancy may be filled up temporarily on a 'year to year' basis by a
candidate not belonging to the Backward Classes. The said Sub-
Rule 7 is as follows :-
"[(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 per cent;
(b) Scheduled Tribes 7 per cent;
(c) De-notified Tribes (A) 3 per cent;
(d) Nomadic Tribes (B) 2.5 per cent;
(e) Nomadic Tribes (C) 3 per cent;
(f) Nomadic Tribes (D) 2 per cent;
(g) Special Backward Category 2 per cent;
(h) Other Backward Classes 19 per cent;
Total 52 per cent.]"
(Emphasis added)
919-WP-4123-2005.doc
9. Thus, it is clear that, as per the said Rules, it is permissible
to appoint a person belonging to OBC category in case of the post
reserved for ST, if it is not possible to fill the said post by a
candidate belonging to ST, SC or N.T. Thus, there is substance in
the submission of Mr. Desai, learned Senior Counsel that the
appointment of the Petitioner is legal and valid.
10. Mr. Desai, learned Senior Counsel relied on the decision in
the case of Kankavali (Supra) and, more particularly, on
paragraph 14, which reads as under :-
"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
category concerned, the Rule enjoins year-to-year
appointment only if an available candidate does not
belong to a backward class. The respondent belonging as
he does to a backward class was entitled to a regular
919-WP-4123-2005.doc
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."
Thus, it is clear that as per the said Rules and in the light of
the decision of the Supreme Court in the case of Kankavali
(Supra), it is clear that the Petitioner's appointment is in
accordance with law.
11. The contention raised by the learned AGP that the
appointment of the Petitioner is neither in accordance with law
nor as per the procedure in the said Rules, has no substance. As
already held the said appointment of the Petitioner is in
accordance with the said Rules and, more particularly, Rule 9(9)
(a). It is significant to note that the Affidavit-in-Reply which the
Education Sub-Inspector, Greater Mumbai has filed in Appeal
No.98 of 2000 before the Tribunal clearly places on record that
although an attempt was made to appoint a candidate belonging
to ST as well as SC categories, no candidate could be found and
therefore the Petitioner who belongs to OBC category was
appointed and re-appointed from time to time. Thus, it is clear
that the Petitioner's appointment is in accordance with law.
919-WP-4123-2005.doc
12. The factual position on record clearly shows that the
appointment of the Petitioner is valid, legal and in accordance
with the applicable Rules.
13. Mr. Sawant, learned AGP has relied on the Government
Resolutions dated 5th November 2009 and 6th February 2012.
However, the said Resolutions will not apply to the present case
as the initial appointment of the Petitioner was on 13th June
1996 and the same is in accordance with the said Rules,
particularly, Rule 9(9)(a). The decision of the Supreme Court in
Kankavali (Supra) is applicable to the present case. Accordingly,
the Writ Petition deserves to be allowed.
14. It is also required to be noted that the Petitioner was
terminated from service on 13th June 2000 by the Respondent
No.1-Management. The Petitioner filed Appeal No.98 of 2000
before the learned Tribunal challenging said oral termination
dated 13th June 2000 and the learned Tribunal has granted stay
and the said stay granted on 24th January 2001 was operating
until 13th June 2005. Thereafter, the present Writ Petition has
been filed in the year 2005 and this Court by the Order dated 5th
August 2005 granted interim relief in terms of prayer clause (c).
Accordingly, the Petitioner is in service in terms of the interim
order since 2001, till date. Thus, the Petitioner is in continuous
service of the Respondent No.1 since the year 1996 till 2023 i.e.
919-WP-4123-2005.doc
more than 27 years as per the particulars set out in the chart
mentioned in paragraph No.3.
15. In view of the facts and circumstances of this case and for
the above reasons, the impugned Order dated 13th June 2005
passed by the learned Presiding Officer, School Tribunal, Mumbai
in Appeal No.98 of 2000 and also oral Order of termination dated
13th June 2000 issued by Respondent No.1 are quashed and set
aside. The Petitioner is entitled for consequential financial and
other benefits.
[MADHAV J. JAMDAR, J.]
