Writ Petition No.2681 of 2014

2nd September, 2014.

Petitioner Counsel: Mr. J.T. GILDA, with Mr. A.J. GILDA
Respondent Counsel: Mr. A.Z. JIBHKATE, Mr. D.M. KALE

Cases Cited:
Madhukar Laxman Sahare Vs. Presiding Officer, School Tribunal, Nagpur and Others, 2009(6) ALL MR 629=2009(6) Mh.L.J. 200 [Para 6,7]
Bank of India Vs. Avinash D. Mandivikar, 2005(5) ALL MR 1023 (S.C.)=2005 (4) Mh.L.J. (SC) 409 : (2005) 7 SCC 690 [Para 8]
Addl. General Manager Human Resource, Bharat Heavy Electricals Ltd. Vs. Suresh Rakrishna Burde, 2007 ALL SCR 1576=2007 (4) Mh.L.J. (SC) 1 : (2007) 5 SCC 336 [Para 8]
Baburao Amrutrao Kharekar Vs. The State of Maharashtra & Others, 1997 (2) Bom.C.R 447 [Para 11]
Pramod Madhukarrao Padole and another Vs. Chancellor, Nagpur University and Others, 1991 Mh.L.J 1487 [Para 11,12]
Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and Others, 2013(6) ALL MR 903 (S.C.)=2014 (2) Mh.L.J 480 [Para 11]
Vanmala S. Aney Vs. National Education Society, Khamgaon and Others, 1982 Mh.L.J. 403 [Para 11]
Dr.Suresh Chandra Verma Vs. The Chancellor, Nagpur University, 1990 Mh.L.J. (SC) 1286 [Para 11]

JUDGMENT

JUDGMENT :- Rule returnable forthwith. Heard finally by consent of learned counsel for the respective parties.

2. By this petition, the petitioner/Management has prayed to quash and set aside Judgment and Order dt. 30.1.2014 passed by the Presiding Officer, School Tribunal, Amravati Division, Amravati, whereby the appeal filed by respondent no.1 herein/ Shri Eknath Rameshwar Raurale challenging termination of his service with effect from 18.2.2013 by an Order issued by the petitioners dt. 16.2.2013 was partly allowed. Termination of service with effect from 18.2.2013 was set aside as illegal. By the impugned order, respondent no.1 was directed to be reinstated to the post of junior College teacher within period of 40 days from the date of order, with 50% back wages payable within two months to respondent no.1 for the period with effect from 18.4.2013 till reinstatement of respondent no.1. Absence of respondent no.1 from 18.2.2013 till the date of his reinstatement was directed to be treated as continuity of service in the service book of respondent no. 1.

3. This petition is by the petitioner/Management, which is a registered Public Trust. The case of the petitioner is that it runs Dyaneshwar Pawar Junior College (Arts, Commerce & Minimum Competency Vocational CoursesM. C.V.C.) at Bhatkuli Jain, Tahasil Bhatkuli, District Amravati. On 19.10.1991, respondent no.1, with educational qualifications as M.Com., B.Ed., was appointed as a full time teacher upon production of Caste Certificate showing that he belonged the caste 'Koli Mahadev' (Scheduled Tribe). According to the petitioners, it was obligatory upon respondent no.1 to produce the Caste Validity Certificate. The respondent no.1 had produced the Caste Validity Certificate of the caste 'Koli' (notified as Special Backward Class) and not 'Koli Mahadev' (Scheduled Tribe) as claimed. The petitioner contended that knowing about this misrepresentation, respondent no.1 was required by the Management of the petitioners to produce the Tribal Validity Certificate of Scheduled Tribe 'Koli Mahadev'.

4. The facts, briefly stated, are as under :

That the petitioner had issued an advertisement inviting applications for the posts of Professors and Demonstrators. Amongst them, two posts of Professors were to be filled in with educational qualification as M.Com. - Second class with subject of Advance Cost Accounting & Marketing Management to teach in minimum competency Courses at 10+2 level. The advertisement invited the candidate to attend the interview at 11.00 a.m. on Sunday, 6th October, 1991. The advertisement also clarified that priority would be given to the candidates belonging to the Scheduled Caste and Scheduled Tribes who were enrolled with Employment Exchange and Social Welfare Office. Accordingly, respondent no.1 had appeared for the interview and he was selected and appointed as a Professor subject to probation period of two years and subject to production of Physical Fitness Certificate obtained from the Primary Health Center, Bhatkuli, within three months and subject to approval from the District Vocational Education and Training Officer on 19.10.1991 for the post of full time Teacher in junior College. The appointment Order did not indicate that the appointment was made against the post reserved for the Scheduled Tribe (S.T.) Category candidate. By the appointment Order, dt. 24.6.1992, the appointment of respondent no.1 was made with effect from 25.6.1992 till further order subject to the same conditions informing respondent no.1 to accept appointment Order within seven days. By further appointment Order, dt.26.6.1993, respondent no.1 was informed by the petitioners that his appointment with effect from 28.6.1993 is in vacant post till further Order. These appointment Orders do not indicate that the appointments including the initial appointment of respondent no.1 were made against any reserved category.

5. According to Mr.Gilda, learned Counsel appearing for the petitioners, respondent No. 1 had submitted the Caste Certificate of Caste 'Koli Mahadev' issued by the Executive Magistrate which is recognised as Scheduled Tribe in the State of Maharashtra. On 5.9.1994, respondent no.12 granted approval to the services of respondent no.1 with effect from 10.12.1993. By letter dt. 13.12.2010, the petitioner/Management required the Caste Validity Certificate from the recruits against the post reserved for the reserved categories i.e. S.C., S.T., O.B.C., N.T. and S.B.C. Respondent no.1 furnished the documents pertaining to Caste 'Koli' for being forwarded to the Caste Scrutiny Committee. On 14.9.2011, respondent no.1 was granted Caste Validity Certificate for the Caste 'Koli' by the Caste Scrutiny Committee. Caste 'Koli' is a Special Backward Class and not a Scheduled Tribe. The petitioner/Management by notice, dt.9.1.2013 issued to respondent no.1 required the Caste Validity Certificate of Caste 'Koli Mahadev', on the basis of which respondent no. 1 was appointed on a post reserved for the Scheduled Tribe Category candidates. Since respondent no.1 failed to produce the Caste Validity Certificate, termination order was issued on 16.2.2013 and his services were terminated with effect from 18.2.2013. Respondent no.1 challenged the termination order by filing appeal in the School Tribunal, as bad in law. The School Tribunal, which heard the appeal, allowed it and hence, the petitioner has questioned the validity thereof.

6. Mr.Gilda, learned Counsel has cited the ruling in the case of Madhukar Laxman Sahare vs. Presiding Officer, School Tribunal, Nagpur and Others reported in 2009(6) Mh.L.J. 200 : [2009(6) ALL MR 629]. The petitioner in the said case belonged to 'Gowari' Caste but claimed as 'Gond-Gowari' (Scheduled Tribe) to secure appointment as a teacher. It was held by the Single Judge Bench of this Court that services of teacher were rightly terminated by the Management as the petitioner was not entitled to continue in the post which was meant for a candidate belonging to Scheduled Tribe. In Para 14 it was observed thus;-

"14. Relying on a judgment of the Supreme Court in Bank of India Vs. Avinash D. Mandivikar, reported at 2005(4) Mh.L.J. (SC) 409 = (2005) 7 SCC 690 and Addl. General Manager Human Resource, Bharat Heavy Electricals Ltd. vs. Suresh Rakrishna Burde, reported at 2007 (4) Mh.L.J. (SC) 1 = (2007) 5 SCC 336 the learned counsel for the respondent submitted that a person securing appointment on the basis of the false caste claim was not entitled to continue in the post and termination of his service was proper. The learned Counsel for the petitioner, on the other hand, submitted that in view of the judgment in Punjab National Bank vs. Vilas s/o. Govindrao Bokade, reported at 2007 (3) Mh.L.J. (SC) 805 = 2007(8) Scale 108 the petitioner was entitled to benefit of Government Resolution dated 15.06.1995, since he was appointed prior to that date. In order to claim benefit of Government Resolution dated 15.06.1995 it would have been necessary for the petitioner to come with clean as to the caste to which he belongs. In any case, once the petitioner accepts that he does not belong to scheduled tribe, since the post was meant for a candidate belonging to scheduled tribe the petitioner was not entitled to continue in such a post. In view of this, the judgment in Punjab National Bank vs. Vilas does not help the petitioner."

7. Mr.Gilda, learned Counsel submitted that the appointee claiming falsely as belonging to "Koli Mahadev" Scheduled Caste for the purpose of his recruitment to the post of teacher in junior College is not entitled to continue in the same post as vacillation by the appointee as to the Caste to which he belongs and his inability to prove it became decisive as referred to in the ruling in the case of Madhukar Laxman Sahare, [2009(6) ALL MR 629] (cited supra), wherein the appointee belonged to 'Gowari' caste but had claimed as belonging to "Gond Gowari" Scheduled Tribe. The appointee could not prove that he is belonging to Scheduled Tribe. It was held that his services were rightly terminated.

8. It is submitted that this Court - in the afore-mentioned case of Madhukar Laxman Sahare - has placed reliance upon the judgments of the Supreme Court in Bank of India Vs. Avinash D. Mandivikar, reported in 2005 (4) Mh.L.J. (SC) 409 = (2005) 7 SCC 690 : [2005(5) ALL MR 1023 (S.C.)] and Addl. General Manager Human Resource, Bharat Heavy Electricals Ltd. vs. Suresh Rakrishna Burde, reported in 2007 (4) Mh.L.J. (SC) 1 = (2007) 5 SCC 336 : [2007 ALL SCR 1576] to hold that a person securing appointment on the basis of false caste claim was not entitled to continue in the post and termination of his service was held proper.

9. Mr.A.J.Gilda, learned Counsel argued that Section 10(1) of the Caste Validity Act, 2000 will prevail over the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and Rules framed thereunder. He submitted that an employee trying to blow hot and cold would not be entitled to use of discretion in his favour. According to learned Counsel Mr.Gilda, the impugned Judgment is faulty and liable to be set aside. But it must be noted that contentions of Mr.Gilda, learned Counsel is not supported by the relevant documentary evidence. None of the appointment orders issued to respondent no.1 indicated that respondent no. 1 was appointed from the reserved category of "Koli Mahadev" as alleged. Hence, the rulings cited are not attracted in the facts and circumstances of the case in hand.

10. On the other hand Shri Jibhkate, learned Counsel for respondent no.1 supporting the impugned Judgment and Order submitted that the Order of termination of services of respondent no.1 was clearly illegal and rightly set aside by the School Tribunal. Mr.Jibhkate submitted that the initial appointment was never made against any reserved category, although the petitioner had mentioned that priority would be given to the candidate belonging to Scheduled Caste or Tribe.

11. On the other hand, Mr.A.Z.Jibhkate, learned Counsel for respondent no.1 cited the following rulings :

A) Baburao Amrutrao Kharekar vs. The State of Maharashtra & Others reported in 1997 (2) Bom.C.R 447. It was held that the appointee's letter of appointment did not show for successive years that he was appointed to the reserve post. The fact in that case was noted that the Education Department's approval was not against any reserved vacancy or temporary post but was against the General category permanent post.

B) Pramod Madhukarrao Padole and another vs. Chancellor, Nagpur University and Others, 1991 Mh.L.J 1487. It was held that there cannot be reservation of posts in any of the three cadres of Professors, Readers and Lecturers, where there is a solitary post in a particular discipline. Reservation must be made only with reference to the posts in the cadres, available in a particular discipline, subject only to the availability of more than one post.

C) In Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and Others reported in 2014 (2) Mh.L.J 480 : [2013(6) ALL MR 903 (S.C.)] - In case of wrongful termination, it was held that the employee would be entitled to continuity of service and back wages. In this case, the Supreme Court considered the normal rule of reinstatement with continuity of service with back wages when the termination of service is proved as wrongful (act). Reinstatement is to restore the employee to the same position in which he would have been, had he not been illegally terminated. Thus reinstatement is preceded by the finding of the competent court/ judicial body/quasi-judicial body as the case may be to the effect that the action on the part of the employer is ultra vires of the relevant legal provisions or the principles of natural justice. Such unlawfully terminated employee is entitled to claim full wages.

D) Vanmala S. Aney vs. National Education Society, Khamgaon and Others reported in 1982 Mh.L.J. 403. The Division Bench of this Court held with reference to Section 4(6) of the MEPS Act read with Rule 33 (1) of the MEPS Rules that the provision is a mandatory provision. The Management cannot suspend an employee unless it authorises the Chief Executive Officer to suspend an employee concerned, after obtaining prior permission from the Education Officer. In the ruling in the said case of Vanamala .S Aney, Section 4(6) of the MEPS Rules was held as mandatory and not directory. Section 4(6) of The Maharashtra Employees of Private Schools (Conditions of Service) Act, 1977 mentions thus:-

S.4(6) No employee of a private school shall be suspended, dismissed or removed or his services shall not be otherwise terminated or he shall not be. reduced in rank by the Management, except in accordance with the provisions of this Act and the Rules made in that behalf.

E) In Dr.Suresh Chandra Verma vs. The Chancellor, Nagpur University, 1990 Mh.L.J. (SC) 1286, the Apex Court has observed thus:-

"According to us, the word "post" used in the context has a relation to the faculty, discipline, or the subject for which it is created. When, therefore, reservations are required to be made "in posts", the reservations have to be post wise, i.e., subject wise. The mere announcement of the number of reserved posts is no better than inviting applications for posts without mentioning the subjects for which the posts are advertised. When, therefore, Section 57(4)(a) requires that the advertisement or the employment notice would indicate the number of reserved posts, if any, it implies that the employment notice cannot be vague and has to indicate the specific post, i.e., the subject in which the post is vacant and for which the applications are invited from the candidates belonging to the reserved classes. A non-indication of the post in this manner itself defeats the purpose for which the applications are invited from the reserved category candidates and consequently negates the object of the reservation policy."

12. The decision was followed in the case of Pramod Madhukarrao Padole vs. Chancellor, Nagpur University reported in 1991 Mh.L.J. 1487.

13. Having considered the submissions at the bar in the light of the rulings referred to above, Shri Gilda's submissions suffered from unjustified assumption that respondent no.1 was appointed in the reserved post. In the case in hand, it clearly appears that respondent no.1 was appointed as an open category candidate and not in any reserved post. His services were continued and confirmed as such. The Deputy Director, Vocational Education and Training, Divisional Office, Amravati had, by letter dt.5.1.1994 communicated regular approval with effect from 10.12.1993 as full time teacher in the subject of Marketing and Salesmanship. In my opinion, Section 5(2) of MEPS (Condition of Service Regulations) Act confers on the employee the status of permanency if he has served continuously for a period for two years in a permanent vacancy. Even otherwise, upon scrutiny, respondent no. 1 was certified by the Divisional Caste Scrutiny Committee, Amravati Division, Amravati as belonging to "Koli" Special Backward Class. Caste Validity Certificate was accordingly issued on 10.9.2011. The Joint Director, Vocational Education and Training, Regional Office, Amravati had, by communication dt.21.2.2013 addressed to the Petitioner College, informed about the protection available for services of the Special Backward Class candidate appointed even in reserved post of Scheduled Tribe if serving since prior to the 15.6.1995. Therefore, services of respondent no.1 could not have been terminated after he had put in 21 years of long service as Professor/approved teacher in petitioner's junior College; that too without taking recourse to the procedure prescribed under Rule 36 and 37 of M.E.P.S. Rules 1981. Termination of respondent no.1's service was rightly held as unlawful. The order for reinstatement of respondent no. 1 with back wages and continuity, as ordered by the School Tribunal, is just and sustainable.

14. No fault is found with the impugned Judgment and Order under challenge passed by the Presiding Officer of the School Tribunal, Amravati. I do not find any impropriety, perversity or arbitrariness in the impugned Judgment and Order requiring interference in exercise of the extraordinary writ jurisdiction. Hence, the Writ Petition is dismissed with costs.

15. Mr.Anup Gilda, learned Counsel for the petitioners prays for granting stay to operation of this Judgment and Order passed today on the ground that interim stay is operating. Mr.A.Z.Jibhkate, learned Counsel for the respondents strongly objects the prayer for grant of stay.

16. Since the learned Counsel for the petitioners seeks to challenge this Judgment and Order passed today, there shall be interim stay to operation of this Judgment and Order for a period of six weeks from today.

Petition dismissed.