1996(1) ALL MR 245
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

V.P. TIPNIS AND R.G. VAIDHYANATHA, JJ.

Mrs.Sunita Ramesh Joshi Vs. Secretary And Others

Writ Petition No.4499 of 1987

16th February, 1995

Petitioner Counsel: Mr. M.M.VASHI for Mr.M.P.VASHI
Respondent Counsel: Mrs.S.S.MOGRE

(A) Maharashtra Employees of Private Schools (Conditions of Service) Rules (1981), R.9 - Temporary appointment against reserved vacancy - Appointment of teacher in reserved vacancy of backward class category for 3 years - Subsequent appointment for temporary period in leave vacancy for fourth year - Held, termination of services at the end of fourth year was not invalid - Appointment of teachers without any subject classification was not bad in law AIR 1990 SC 2023 and 1987(2) Bom.C.R.521 Disting. (Paras 5,6)

(B) Constitution of India, Art.226 - New plea - Appointment of candidate from general category due to non-availability of reserved category candidate - Petition challenging termination of services on ground that no reserved category candidate was appointed before termination - To substantiate such argument, no foundation laid in pleadings and evidence before Tribunal - Held such argument cannot be allowed to be raised in writ petition. (Para 6)

Cases Cited:
AIR 1990 S.C. 2023 [Para 5]
1987 (2) Bom.C.R. 521 [Para 5]


JUDGMENT

VAIDYANATHA, J. : This is a writ petition filed by the petitioner challenging the order of the School Tribunal dated 4.8.1987 in Appeal No.63 of 1987 on the file of the School Tribunal, Pune. We have heard the learned counsel for the petitioner and the learned Asstt. Government Pleader. None appeared for respondents no.1 and 2.

2. The petitioner was appointed as an Asstt. Teacher in the 1st respondent school in the year 1982-83. It is an admitted case that she was appointed in the year 1982-83 in the vacancy of backward class. It is also an admitted fact that the petitioner was again appointed in the same category for the years 1983-84 and 1984-85. Again the petitioner was appointed temporarily for the year 1985-86 in leave/deputation vacancy. It appears that the management took the stand that the petitioner's service came to be automatically terminated after the expiry of the academic year 1985-86, particularly with effect from 8.6.1986.

The petitioner challenged the order of the management before the School Tribunal. After hearing both the sides, the School Tribunal held that the petitioner's appointment was in the vacancy of B.C. category for the first three years and her appointment in a leave vacancy for the fourth year and, therefore, her termination was perfectly valid and justified. In view of this finding, the Tribunal dismissed the appeal. Being aggrieved by the said order, the petitioner has approached this Court with this writ petition.

3. The learned counsel appearing for the petitioner has questioned the correctness and legality of the impugned order. It was argued that the very classification of the reserved category is bad. It was argued that there was no proper classification subject-wise for the reserved category. Even otherwise, it was argued, when the petitioner was appointed in a permanent vacancy though temporarily, her appointment should be taken as appointment to a permanent vacancy on probation and since she had completed two years satisfactorily, she should have been confirmed. It was, therefore, argued that the finding of the Tribunal to the contrary is erroneous and liable to be set aside.

4. Most of the facts in this case are undisputed and, in fact, are admitted.

The fact that the petitioner was appointed to the vacancy of B.C. category is an admitted fact. Copies of the letters of appointment are produced in this case. The first appointment letter is dated 14.8.1982 where it is clearly mentioned that the petitioner has been appointed "in the vacancy of B.C. Teacher" for the year 1982-83.

Then the next letter of appointment dated 30.11.1984 also shows that the petitioner's appointment was for the year 1984-85 "in the vacancy of B.C. Teacher".Though the appointment order for 1983-84 is not produced, it is an admitted fact that even during that year also, the appointment was as against a vacancy of B.C. teacher.

Then we come to the last appointment order which is dated 28.6.1985 and it shows that the petitioner's appointment was for a temporary period from 1.7.1985 to 8.6.1986 in the "leave/deputation vacancy". It is further mentioned in the appointment letter that on the expiry of the said period, the petitioner's services shall stand terminated without notice. That is how the petitioner's service came to be automatically terminated with effect from 8.6.1986.

5. The learned counsel for the petitioner contended that in the advertisement for the post of teachers, there was no classification subject-wise and this is bad in law and reliance was placed on a decision of the apex Court in Suresh Chandra Verma v. Chancellor, Nagpur University (AIR 1990 S.C. 2023). That was a case in respect of appointments of teachers in University like professors, readers and lecturers. There was a general classification. For instance, under the heading of professors, it was mentioned that three posts are reserved for scheduled castes, three posts for scheduled tribes, etc. Similar classification was made regarding readers and lecturers. The Supreme Court observed that such a general classification is bad and the classification should have been with reference to subjects which the professors had to teach. The identification of the reserved category should be with reference to subjects was the ruling of the Supreme Court.

In our view, the above decision pertains to appointments of professors, readers and lecturers in colleges where normally appointments are made with reference to subjects. There can be a professor in English or a professor of Physics, Mathematics, etc. There cannot be a professor without any subject in a University. But in secondary schools, it is common knowledge that teachers are appointed without any subject classification. A Science teacher can be given any Science subjects and an Art teacher can be given any Art subjects for teaching.

There may be cases where appointments will have to be made for posts of clerks or peons or similar posts where there cannot be any subject-wise classification at all. For such post, the authority will have to notify the number of total posts and the number of reserved posts. It is only in the case of University teachers that it is possible to make subject-wise classification and that is what exactly has been laid down by the apex Court. Hence, the said decision is not helpful to us to decide the point under consideration.

The learned counsel for the petitioner also invited our attention to a decision of a single Judge of this Court in National Education Soc. High School v. Mrs.Lulomool (1987 (2) Bom.C.R. 521). That was a case where the respondent before the High Court had been appointed temporarily but in a permanent vacancy caused due to the exit of one Mrs.Kochar. No doubt, the appointment letter of the said teacher was for a temporary period. The High Court noticed that though the letter of appointment shows that it was a temporary appointment, since it was an appointment regarding a permanent vacancy, it should be taken as an appointment on probation in a permanent vacancy and, therefore, after the lapse of two years, the said teacher was entitled to be confirmed. A perusal of that judgement shows that it is based on the peculiar admitted facts and circumstances of that case. It has absolutely no bearing on the point under consideration.

6. As can be seen from the facts of this case, the petitioner's very appointment was against a reserved vacancy of a B.C. category. There is no question of the petitioner being mis-led or prejudiced because her very appointment was against a B.C vacancy. If the petitioner had been issued an appointment letter regarding a general vacancy and sub-sequently the management wanted to terminate the services of the petitioner on the ground that her appointment was against a B.C. category, then probably different considerations would have applied. But, however, in the instant case, we find that the very appointment of the petitioner was against a B.C. category and this is permitted in rule 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. After providing for reservation, rule 9(9)(a) in particular provides that if candidates for reserved vacancies are not available, then candidates from general category may be appointed temporarily on an year-to-year basis till of course reserved category candidates are available. That is what exactly has been done in the present case.

The learned counsel for the petitioner at one stage contended that when reserved category candidates have not been appointed, the petitioner's services could not have been terminated. But to substantiate his argument, we do not have any foundation both in the pleadings and the evidence before the Tribunal. We do not have any material to say whether for the year 1985-86 any B.C. candidate was appointed or not. Hence, we cannot consider such a hypothetical question at this stage without there being any pleadings or evidence. The learned counsel for the petitioner also commented about some wrong inferences drawn by the Tribunal. In our view, irrespective of the reasoning of the Tribunal, we find that its conclusion that the petitioner had been appointed as against a B.C. category vacancy and she cannot claim confirmation in that post is fully justified and based on available materials on record. It is also argued that the approval letters from the Government are not produced. It was, therefore, argued that it is not known whether the Government had approved the appointment letters under which the Petitioner had been appointed against B.C. category. This grievance cannot be made in this Court. The petitioner could have taken steps before the Tribunal to call upon the management to produce the relevant letters or the petitioner could have taken summons or notice to the Department to produce the relevant papers. Hence, we cannot entertain that argument at this stage.

7. After going through the material on record, we are satisfied that the petitioner's appointment was against a B.C. category and, therefore, she cannot claim confirmation in the said post. As far as the last year is concerned, viz., 1985-86, the order of appointment says that it was just for a temporary period as against a leave/deputation post only. Hence, in the circumstances, the petitioner cannot claim confirmation in that post of a teacher. The Tribunal's finding is fully justified. We do not find any irregularity or infirmity in the impugned order.

8. In the result, the petition fails and is dismissed. Rule discharged. In the circumstances of the case, there will be no order as to costs.

Rule discharged.