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Judgment
C.L. Pangarkar, J.—The School Management prefers this writ petition feeling aggrieved by the order of the School Tribunal directing reinstatement of respondent No. 1 -- teacher.
The facts giving rise to the writ petition are as follows Respondent No. 1, who is a teacher, claims that he is M.Com. and B.Ed. He claims that he was appointed on 24/6/1989 on probation for a period of two years. His services, however, were terminated by order dated 6/4/1990, at the end of Academic Sessions 198990. The Services were terminated on the ground that the said post was reserved for candidate from Scheduled Tribe category. He was again appointed in the year 1990. His services were once again terminated in the year 1991 on the same ground. Subsequently, he was appointed for another two years and he continuously worked up to year 199293. Respondent No. 1, therefore, challenged his termination dated 31/3/1993 before the School Tribunal. According to him, he holds, necessary qualifications. He was appointed in a clear vacancy and on probation and therefore, his services could not be terminated. It is also contended that his services were initially terminated on the ground that the post was reserved for a Scheduled Tribe candidate. When the services were terminated on the fourth occasion, a new ground was invented saying that he was not qualified to teach the subject for which requirement was there. It was also informed that the Education Officer has not given approval to his appointment. Thus, according to respondent No. 1, his services were wrongly terminated and he was entitled to reinstatement.
The petitioner Management resisted the appeal filed before the school Tribunal and contended that respondent No. 1 was appointed against a vacancy meant for a Scheduled Tribe candidate and therefore his appointment was from year to year. He had, therefore, no right to claim appointment on probation on the post reserved for scheduled tribe candidate. It is also contended that no approval was granted to the appointment of respondent No. 1 and therefore, his services were rightly terminated.
The School Tribunal found that the termination was illegal and therefore, directed reinstatement.
I have heard the learned Counsel for the petitioners as well as the respondents. 4
Respondent No. 1 claims that he was initially appointed on 24/6/1989 in a clear vacancy but his services were terminated at the end of the year and his appointment was on probation. His case is further that he was later appointed from year to year and he worked actually up to 23rd July, 1993.
Shri Kothale, learned Counsel for respondent No. 1, submits that the first appointment of respondent No. 1 was on probation and therefore, he could not be terminated without showing that his work and behaviour was not good and the termination in this case is not on that ground. He submits that the termination order does not show that. He also submits that, therefore, his further period on reappointment after first year should be calculated for probation period and he should be taken to have completed the probation after two years. Shri Palshikar, learned Counsel for the petitioner, on the other hand, submits that though the order of appointment says that he was appointed on probation, that order itself was wrong. He submits that he could not have been appointed on probation as the said vacancy was not a permanent and clear vacancy for respondent No. 1, who belongs to open category and the post was one for the reserved category candidate. My attention was invited by the learned Counsel for the petitioner to the first advertisement dated 20/5/1989 in pursuance to which respondent No. 1 applied and was appointed. The advertisement dated 20/5/1989 clearly indicates that Post No. 3 of Commerce Teacher was a reserved post. Similarly, Post No. 7 of Biology Teacher was also a reserved post. There is a note below saying that one post for scheduled tribe and one for scheduled caste is reserved. Thus, these two posts, which were advertised were certainly reserved for the reserved category candidate. Respondent No. 1 was appointed against post No. 3 i.e. Commerce Teacher is not disputed. Respondent No. 1 is a Commerce graduate. If this post was actually reserved for the reserved category, certainly it could not be filled by appointing an open category candidate on probation thereby making a permanent appointment. The appointment order dated 24/6/1989 though shows that he is appointed on probation, that appears to have occurred inadvertently. The termination order dated 6/4/1990 makes it clear that services are being terminated as it was a post reserved for scheduled tribe candidate. Such termination on this ground is accepted by respondent No. 1 and he never challenged that order. Next year also the petitioner issued an advertisement and again respondent No. 1 applied and was appointed on the same post. The appointment order dated 9/7/1990 is clear that it is against reserved class vacancy and for one academic session only. The termination order dated 3/4/1991 also speaks of termination due to the post being one for reserved category. The third appointment order is dated 20/6/1991 with same conditions. The termination order dated 30/3/1992, however, is not on that ground but only says that services are no longer required. Fourth appointment order dated 29/6/1992 is against a reserved class category and for one year on temporary basis. This termination order shows that the termination is effected because Deputy Director has not given approval on the ground that he was not qualified to teach subject of Cooperation.
Shri Kothale, learned Counsel for respondent No. 1, submits that the advertisement does not show that the posts were reserved and there is no roster or other evidence to show that the post against which the respondent was appointed were reserved. He submits that if those posts were not reserved then respondent No. 1 has certainly acquired status of deemed confirmed teacher. He relies on the decision of this Court in 2007 (2) 105 President, Mahila Mandal, Sinnar v. Sunita Bansidhar Patole, the court observes as follows-
Once it is clear that the post wherein the respondent was appointed was a permanent vacancy, unless it is specifically disclosed by the Roster that the same was meant to be filled in by appointment of a reserved category candidate, the provisions of Section 5(1) of the M.E.P.S. Act are clearly attracted. In the case in hand, it is not in dispute that the post which was occupied by the respondent was a permanent vacancy. The contention that it was for reserved category candidate is already found to be devoid of substance. Obviously, when the respondent was duly selected and appointed by issuing appropriate order of appointment on 1st July, 1988, the same was to be considered as in terms of the provisions of law comprised u/s 5(1). Once there is an appointment in accordance with the provisions of law comprised u/s 5(1) and the candidate so appointed completes period of two years of service, the provisions of Section 5(2) are naturally attracted.
The contention that the advertisements does not disclose that the posts are reserved is not correct. If the advertisements are seen, it would be clear that they make it clear that the posts are reserved. In advertisement dated 28/5/1989, the post of Commerce Teacher is clearly shown to be reserved. The other advertisement also makes a reference to be reservation.
Further, the approval order issued by the Deputy Director on 24/1/1990, 6/10/1990 and 20/4/1992 clearly show that approval to appointment of respondent No. 1 was granted for one academic session against the backlog of reserved category. Thus, it is once again clear that there is enough evidence to hold that the appointment was against a reserved category. Rule 9(9)(a) & (b) of the M.E.P.S. rules, permits a temporary appointment of open category candidate until suitable reserved category candidate is found out. The appointment of respondent No. 1, therefore, has to be treated as one falling under Rule 9(9)(a) and (b). The said rule reads as follows-
(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 or an year to year basis by a candidate not belonging to the Backward Classes.
(b) In the case of a non-teaching post, if a person from the particular category of Backward Classes is not available, the Management shall make efforts with regular intervals to fill up the post within the period of five years and the post shall not be filled up during that period by appointing any other person who does not belong to the respective category of Backward Class.
Thus, Rules make it clear that the appointment would be on year to year basis and temporary. Where such appointment is made it cannot be said to be in a clear and permanent vacancy for the candidate in open category. Respondent No. 1 does not belong to any reserved category but is open category candidate as can be seen from his own application for appointment dated 18/6/1990 (Annexure ''F'' in School Tribunal record).
The last appointment dated 29/6/1992 though not proved to be against the reserved category, was only a temporary appointment. Shri Kothale, learned Counsel for respondent No. 1, relying on decision of this Court in Yogeshwar Vikas Sanstha and Others Vs. Rajendra T. Shinde and Another, , submits that if the appointment is against clear vacancy, it should be treated as on probation.
The Supreme Court, however, in a decision reported in Hindustan Education Society and another Vs. Sk. Kaleem Sk. Gulam Nabi and others, observed as under-
In view of the above and the order of appointment, the appointment of the respondent was purely temporary for a limited period. Obviously, the approval given by the competent authority was for that temporary appointment. As regards permanent appointments, they are regulated by Sub-sections (1) and (2) of Section 5 of the Act according to which the Management shall, as soon as possible, fill up, in the manner prescribed, every permanent vacancy in a private school by appointment of a person duly qualified to till in such vacancy. Every person so appointed shall be put on probation for a period of two years subject to the provisions of Sub-sections (4) and (5). He shall, on completion of the probation of period of two years be confirmed.
Under these circumstances, the appointment of the respondent cannot be considered to be a permanent appointment. As a consequence, the direction issued by the High Court in the impugned judgment dated July 31, 1996 in Writ Petition No. 5821/95 that he was regularly appointed is clearly illegal and cannot be sustained.
Therefore, when the appointment is temporary, it comes to an end at the end of the Academic Session and employee cannot make a grievance. It is only when the appointment is on probation and termination is effected that the grievance could be made. In the circumstances, it has to be held that the termination cannot be faulted and order of the school Tribunal will have to be quashed and set aside The petition is allowed. The order of School Tribunal is set aside and the appeal of respondent No. 1 before the School Tribunal is dismissed. Rule is made absolute. No order as to costs.
Shri Kothale, learned Counsel for the respondent No. 1, makes a request to suspend the operation of this order for a period of two weeks. Request granted.