Writ Petition No. 2905 of 2012

25th November, 2013

Petitioner Counsel: Shri H.A. DESHPANDE
Respondent Counsel: Shri P.N. SHENDE, Shri T.R. KANKALE

Cases Cited:
Magaswargiya Shikshan Sanstha, Nagpur and two others Vs. Ku. Kalpana Dadaji Rahate and two others, W.P. No. 5279/2009 Dt.26.3.2012 [Para 7,10]
Shakuntala Ganpatrsa Shirbhate Vs. Industrial Weaving Co-operative Society, AIR 1994 SC 36 [Para 8]
Kankavali Shikshan Sanstha and others Vs. M.R.Bavali and others, 2006(1) ALL MR 266 (S.C.) [Para 8]
Sharad Balaji Mankar Vs. Presiding Officer, School Tribunal, Amravati and others, W.P. No. 2767/1996, Dt.6.11.2006 [Para 10]

JUDGMENT

JUDGMENT :- Rule made returnable forthwith.

Heard the matter finally by consent of the learned counsels appearing for the parties.

2. This petition challenges the order dated 19.11.2010 passed by the School Tribunal in Appeal No. STC/81/2003, deciding a preliminary issue and holding that the appointment of the respondent no.1 - employee was as per the provisions of Section 5 of M.E.P.S. Act read with Rule 9 (9) of the Rules framed thereunder. The order holds that the respondent no.1 - employee belongs to Scheduled Caste category and though he was appointed against a vacancy reserved for Scheduled Tribe candidate, there was no restriction for making an appointment of a candidate belonging to another reserved category, if the candidate belonging to category for which the post is reserved is not available.

3. The petition also challenges the ultimate judgment and order dated 06.01.2012 passed by the School Tribunal in the said Appeal, holding that the initial appointment of the respondent no.1 - employee on 01.07.2000 has to be treated as on probation for a period of two years and since the respondent no.1 - employee was continued in service beyond 30.06.2002, he had acquired the status of a permanent teacher. It has been held that the services of a permanent employee could have been terminated only by following the procedure laid down in Rule 36 and 37 of the M.E.P.S. Rules and since the procedure was not followed while terminating the services, the order of termination has been quashed and set aside. The respondent no.1 - employee is directed to be reinstated in service with continuity and full back-wages. Hence, the management is before this Court.

4. The undisputed factual position is as under;

The respondent no.1 - Kawadu Pandurangji Ghutake was initially appointed by a order dated 04.10.1999 as a lecturer in junior college run by the petitioner society for a period of one year from 04.10.1999 to the end of the session in the year 2000. This appointment was pursuant to an advertisement issued on 30.09.1999. The proposal for appointment of the respondent no.1 - employee was forwarded to the Deputy Director of Education, who has refused to grant his approval by an order dated 27th March, 2000, holding that the candidate for appointment to the post of lecturer in Sociology from Nomadic Tribe (C) category was available at the time of interview, but still the respondent no.1 - employee has been appointed leaving the backlog of the said category. The respondent no.1 - employee was thereafter continued by separate order of appointment dated 01.07.2000 on temporary basis for a period of one year i.e upto the end of the Session 2001. Again approval to this appointment was rejected by the Deputy Director of Education by his order dated 13th October, 2000, holding that the backlog of the reserved category candidate has not been fulfilled. The respondent no.1 - employee thereafter was again issued a fresh order of appointment for the period from 02.07.2001 till 30.04.2002. Since he was prevented from signing the muster roll w.e.f. 18.08.2003, he approached the School Tribunal under Section 9 of M.E.P.S. Act, by filing Appeal No. STC/81/2003, treating it as otherwise termination and claiming reinstatement with continuity and back-wages.

5. The Management in response to the memo of appeal took the stand that the appointment of the respondent no.1 - employee was against the post reserved for Scheduled Tribe candidate. According to the Management, the Deputy Director of Education has refused to grant approval to the appointment of respondent no.1 - employee on the ground that there exists a backlog of Nomadic Tribe (C) category and the petitioner did not belong to the said category. It was denied that the appointment of the respondent no.1 - employee was in a clear and permanent vacancy and the stand was taken that his appointment was against the post reserved for Schedule Tribe candidate, which was made on year to year basis without conferring any right upon the employee to claim permanency in service.

6. After going through the documents placed on record, the memo of appeal, reply filed by the management and the orders passed by the School Tribunal, the undisputed position seems to be that the appointment of the respondent no.1 - employee on every occasion is on temporary basis for a period of one session only. Though the initial appointment of the petition on 04.10.1999 was pursuant to the advertisement dated 30.09.1999 as a lecturer in junior college, it was only for a period of one year which came to an end at the end of Session 1999-2000. In the memo of appeal, there is no grievance made in respect of it. It is, however, claimed by the respondent no.1 - employee that his continuation in service by issuing fresh orders of appointment on 01.07.2000 and 02.07.2001 was in the same post, though there is no specific pleadings in respect of it. The respondent no.1 - employee claimed to have been appointed as a lecturer to teach the subject - Sociology and History against a post reserved for Nomadic Tribes (C) category. Though it is the stand taken by the management in its reply that the appointment of the respondent no.1 - employee was as a lecturer in Sociology in the post reserved for Scheduled Tribe Category, it is urged that, reference in reply to post being reserved for Scheduled Tribe candidate is due to inadvertence and actually it is the appointment made against the post reserved for Nomadic Tribes (C) category. The Deputy Director of Education has rejected the approval holding that in spite of availability of the candidate belonging to Nomadic Tribes (C) category, the respondent no.1 - employee belonging to Scheduled Caste category has been appointed, contrary to reservation, and hence the appointment cannot be approved.

7. The learned counsels appearing for the parties do not dispute the position of law that if a post is reserved in the advertisement for a particular category of backward class and if such candidate was not available for appointment, then a candidate belonging to remaining backward class category could be appointed on the post and such appointment need not be on year to year basis, but will have to be treated as one on probation. Shri Deshpande, the learned counsel appearing for the petitioner, has, however, relied upon the decision of this Court rendered on 26th March, 2012, in W.P. No. 5279/2009 (Magaswargiya Shikshan Sanstha, Nagpur and two others vrs. Ku. Kalpana Dadaji Rahate and two others), to urge that the question whether a candidate belonging to particular backward category was available or not is a question of fact and it is required to be pleaded and proved. In the absence of such pleading and proof, according to him, the principle of law referred to above shall not be applicable. He submits that there is total absence of pleadings and proof, either that the post was reserved for Nomadic Tribes (C) category and that the candidate belonging to said category was not available, or that the post was reserved for Scheduled Tribe Category and the candidate belonging to the said category was not available. He submits that, on the contrary, the orders refusing to grant approval, placed on record, clearly indicate that the post was reserved for Nomadic Tribes (C) category and in spite of availability of such candidate, the petitioner was appointed. Hence, according to him, the appointment has to be necessarily treated as one on year to year basis, without conferring any status of permanency even if the employee completes continuous service of more than two years.

8. It is urged by Shri Shende, the learned counsel appearing for the respondent no.1 - employee that in the memo of appeal, it is clearly stated that the respondent no.1 was appointed in a clear and permanent vacancy reserved for Scheduled Tribe Candidate on year to year basis. It is, however, averment in the memo of appeal that the respondent no.1 - employee belonged to backward class category i.e., his sub-caste is Mahar (Scheduled Caste). He further submits that reference is also made to Rule 9(7) and 9(8) of the M.E.P.S. Rules, which, according to him, casts a bounden duty upon the management that a candidate belonging to a category for which the post is reserved is not available, then to appoint the candidate belonging to other backward class category on regular basis. He has relied for this proposition upon two decisions of the Apex Court i.e. (i) in case of Shakuntala Ganpatrsa Shirbhate vrs. Industrial Weaving Co-operative Society reported in AIR 1994 SC 36, AND (ii) in case of Kankavali Shikshan Sanstha and others vrs. M.R.Bavali and others, reported in 2006(1) ALL MR 266 (S.C.). He supports the findings recorded by the School Tribunal, holding that for want of candidate belonging to Schedule Tribe Category, the petitioner who belongs to Scheduled Caste Category was required to be appointed on probation.

9. In the background of the aforesaid disputed and undisputed factual position, it is apparent that the burden to establish that the appointment of the petitioner was made for want of candidate belonging to category for which the post was reserved, was upon the respondent no.1 - employee , the original appellant. It is not clear from the memo of appeal filed by the respondent no.1 as to whether a candidate belonging to Scheduled Tribe Category was available when he was appointed initially in response to the advertisement dated 30.09.1999. In spite of knowing fully well that the Deputy Director of Education has refused to grant approval to his appointment, on the ground that the post was reserved for Nomadic Tribes (C) category and the candidate belonging to the said category was available, neither any reference is made to it nor specific avertments are made that the Deputy Director of Education proceeded on wrong assumption that the respondent no.1 was appointed against a post reserved for Nomadic Tribe (C) Category. Though an averment is made in the memo of appeal that the respondent no.1 was appointed in a permanent vacancy on year to year basis in a reserved vacancy for Scheduled Tribe, there is no averment that the candidate belonging to Scheduled Tribe Category was not available and therefore, the appointment of the petitioner, who belongs to Schedule Caste (Mahar) category, was made. In the absence of such averments and the dispute which has surfaced, it was absolutely necessary for the respondent no.1 to have come forward with a specific case.

10. Be that as it may, the respondent no.1 did not make any grievance against the fresh appointments made on 01.07.2000 and 02.07.2001. From the documents produced on record, it is apparent that the respondent no.1 had accepted that his appointment was purely on temporary year to year basis and he could not have claimed regular appointment on the post, whether it was reserved for Nomadic Tribe (C) category or Scheduled Tribe Category. The decision of the Apex Court in Kankawali's case, relied upon by the learned counsel for the petitioner, follows the earlier decision of the Apex Court in Shakuntala's case. Following these decisions, the learned Single Judge of this Court in a decision rendered in Sharad Balaji Mankar vrs. Presiding Officer, School Tribunal, Amravati and others, delivered in Writ Petition No. 2767 of 1996, decided on 6th November, 2006, has held that in absence of pleadings and the material facts, the benefits under Rule 9(9) of the M.E.P.S Rules cannot be granted. This case has been considered by this Court in a decision in the case of Magaswargiya Shikshan Sanstha, cited supra. In view of this, the view taken by the School Tribunal in the impugned judgment and order holding that the appointment of the respondent no.1 employee was required to be treated as on probation w.e.f. 01.07.2000 and consequently he had acquired deemed confirmation of service, cannot be sustained. The appointment of the respondent no.1 was on year to year basis and after coming to an end the period stipulated in the order of appointment, his services were terminated.

11. In the result, the writ petition is allowed. The judgment and order dated 06.01.2012 passed by the School Tribunal in Appeal No. STC/81/2003, along with the order dated 19.11.2010 passed therein, is hereby quashed and set aside. The Appeal No. STC/81/2003 is dismissed. No orders as to costs.

Petition allowed.