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Judgment
S.S. Shinde, J.—This petition is filed challenging the judgment and order dated 22.11.2001 passed by the Presiding Officer, School Tribunal, Aurangabad in Appeal No. 189 of 1998.
The background facts of the case, are as under:
The respondent No. 1 herein, being aggrieved by the oral termination of his services, preferred appeal before the School Tribunal, Aurangabad contending that he was appointed as Assistant Teacher in petitioners school in the academic year 1996-97. It is further case of respondent No. 1 that in pursuance to the advertisement issued by the petitioner No. 1 school, he applied for the post of Assistant Teacher and he was interviewed and selected for the said post. He joined his duties in July, 1996, for the academic year 1996-97 in the pay scale of Rs. 1200-2040. It is further case of the respondent No. 1 that the management after considering his satisfactory performance, appointed him for next academic year i.e. 1997-98 on the same post which was vacant. Since he was appointed on clear vacant post to the in view of Section 5(2) of the Maharashtra Employees of Private Schools (Condition of Service) Regulation Act, 1977 (hereinafter for the sake of brevity referred to as the said Act), he deemed to be permanent. It is the case of respondent No. 1 that he worked satisfactorily with the petitioner management. He belongs to Wanjara caste, which is reserved category (N.T.). A copy of caste certificate was produced before the School Tribunal. Respondent No. 1 had also contended that though he was appointed for two academic years, no appointment order was issued to him nor any copy of approval was supplied to him. On 15.4.1998, respondent No. 1 was asked to pay Rs. 40,000/- as donation. He was threatened that in case he fails to pay donation of Rs. 40,000/-his services would be terminated. According to the appellant, be belongs to reserved category and his economical condition was very poor and therefore, he was not able to pay the said amount and consequently the services of the appellant came to be terminated by petitioner Nos. 1 and 2.
It is his further case that his appointment was for two years. He was continued in service for two years. The management cannot terminate his service unless one months notice or salary of one month in lieu of notice is given to him as per the provision of the said Act and the Rules made there under. He claimed that the order dated 30.4.1998 passed by the petitioner Nos. 1 and 2 be set aside and direction may be issued to reinstate him with full back wages with continuity of service.
The petitioner Nos. 1 and 2 herein had filed written statement before the School Tribunal on 28.9.1998. According to the petitioners, the appointment of respondent No. 1 was for the academic year 1996-97, on temporary basis against the post, which was reserved for S.T. Category. His first appointment came to an end on 30.4.1997. Second appointment was for the period of one year i.e. for the academic year 1997-98 till the availability of S.T. Candidate, which came to an end on 30.4.1998. It is the case of the petitioner Nos. 1 and 2 that the a clear understanding was given to respondent No. 1 that his appointment is against the post reserved for S.T. category. It is further case of the petitioner Nos. 1 and 2 that his appointment automatically came to an end on 30.4.1998. The memos were given to him for not having satisfactory performance. It is further stated in the written statement that one Mr. Pathan Harun Khan i.e. petitioner No. 3 was appointed in place of respondent No. 1, who resumed the duties on 22.6.1998. It is further stated in the written statement that there is no requirement of notice to be issued to the respondent No. 1 and the petitioners prayed for dismissal of appeal.
The petitioner No. 3 herein who is original respondent No. 4 filed written statement. He stated that he is M.A. M. Ed. and belongs to S.T. category and he was duly appointed to the post of Assistant Teacher. The Education Officer has also granted approval to his appointment and he prayed for dismissal of the appeal.
The School Tribunal, on the basis of the pleading of the parties, framed necessary points for its determination. The School Tribunal, held that Rule 28 Sub Rule 1 of Maharashtra Employees of Private School (Condition of Service) Regulation Rules, 1981 (hereinafter for the sake of brevity referred to as the said Rules), is applicable in the case and the same was not followed. The Tribunal further observed that to substantiate the contention of the petitioners that the post was reserved for S.T. candidate, no roster was produced on record by the petitioner Nos. 1 and 2. It is further observed that the petitioner Nos. 1 and 2 produced a copy of one appointment order dated 16.6.1997 showing that respondent No. 1 was appointed till 30.4.1998. However, no copy of appointment order for the academic year 1996-97 was produced on record. On the basis of the material brought on record, the Tribunal reached to the conclusion that it is not possible to conclude that the appointment of respondent No. 1 herein at the first time was against the S.T. category. The Tribunal held that even according to the contention of petitioner Nos. 1 and 2, the services of respondent No. 1 came to an end on 30.4.1998, however, it was not necessary to issue termination order in writing on 30.4.1998. It is further held that the Head Master who has no any authority to terminate the services of the respondent No. 1, and therefore, the said order per se is illegal.
The Tribunal further held that the petitioner Nos. 1 and 2 herein failed to prove that the performance of respondent No. 1 was unsatisfactory. It is further held that the termination order must have been issued by the Secretary of the management but the same is issued under the signature of Head master, which is contrary to Rule 28(1) of the said Rules.
In para 12, of the judgment, the Tribunal recorded a findings that the management and Head Master has ignored the provisions of Rule 9(9) (a) of the said Rules. The respondent No. 1 belongs to N.T. category. A copy of his caste certificate dated 8.5.1998 shows that he belongs to Wanjari caste. If the candidate from S.T. category was not available and respondent No. 1 herein was given appointment in his place, the management had to follow the Rule 9(9)(a) of the said Rules. Under this provision, at the initial appointment also the appointment was on permanent basis. The Presiding Officer, School Tribunal, has interpreted Rule 9(9) (a) of the said Rules and held that in case it is not possible to fill in the teaching post for which the vacancy is reserved for a person belonging to a particular category, the post is required to be filled in by selecting the candidate from other categories as specified in Sub-rule 7 of Rule 9. Therefore, the Tribunal held that the services of the appellant are terminated in contravention of the said Rules. The petitioner management has not given any proper representation to the backward class candidate while making appointment in the school. The tribunal further observed that copy of list of employees filed by petitioner Nos. 1 and 2 shows that out of 14 employees, no employee has been appointed from SC and ST category and there is no compliance of the reservation policy. The Tribunal therefore, allowed the appeal and set aside the termination order dated 30.4.1998 and the petitioners herein are directed to reinstate the respondent No. 1 with 75% back wages within 40 days and further to allow the consequential benefits. The said judgment and order of the Tribunal is under challenge in the instant writ petition.
Heard learned Counsel appearing of the petitioners, learned counsel for respondent No. 2 and learned AGP for respondent Nos. 2 and 3. Learned Counsel for the petitioners submitted that though written statement was filed before the School Tribunal and prayer was made to treat the same as written arguments, the said prayer was rejected by the School Tribunal. It is further contended that the judgment and order passed by the Tribunal is without hearing the petitioners herein. The advocate appearing for the petitioners sustained vertigo paining chest and sweating and therefore, she was taken to the hospital and could not attend the final hearing of the appeal. The learned Counsel for the petitioners invited my attention to the medical certificates placed on record to demonstrate that at the relevant time, advocate for the petitioners was not able to attend the hearing due to serious ailment.
Learned Counsel for the petitioners has invited my attention to the advertisement annexed to the petition at Exh.V and Exh. W and has contended that the said advertisement was issued to appoint the post of Assistant Teacher for temporary period till the candidate from reserved category is made available. Learned Counsel submitted that the said advertisement clearly shows that the posts were advertised against reservation for S.T. candidates and it was made clear in the said advertisement that the post is reserved for S.T. category and in case no suitable candidate from the said category is found, the other candidate would be considered. It is submitted that the School Tribunal ignored the fact that if the person is appointed on reserved post, he has no right to hold the post and there is no Rule to carry forward if the candidate of that category is available. It is further submitted that respondent No. 1 had given undertaking that his appointment was for only one year and he will not claim further continuation after a period of one year is lapsed. It is further submitted that the School Tribunal did not accept the contention of respondent No. 1 herein that he is not permanent employee. It is further submitted that the Tribunal has observed that the appointment of respondent No. 1 herein, at the first time, does not appear to be against S.T. post. It is further submitted that as per the Government Resolution dated 19.6.1995, the petitioner Nos. 1 and 2 followed procedure for filling in the vacancy of S.T. category. The first appointment order issued to respondent No. 1 clearly reveals that he was temporarily appointed. It is further contended that in the second appointment order dated 30.6.1997 which was issued as per the Rules and G.R. Dated 19.6.1995, was for a fixed period up to 30.4.1998 and in the said appointment order itself, it was made clear that the services of respondent No. 1 will come to an end on 30.4.1998. It is further contended that respondent No. 1 accepted the appointment order for a stipulated period and had given undertaking and he will not claim any right over the post, as it is meant for S.T. Category. According to the learned Counsel, the appointment order clearly shows that the respondent No. 1s appointment was for fixed period which came to end on 30.4.1998. Learned Counsel placed reliance to support her contention that it was not necessary to follow procedure prescribed under Rule 28 of the said Rules in the reported judgment of this Court in the case of Akbar Peerbhoy College and others Vs. Pramila N. Kutty (Ms.) and others., and the judgment of the Supreme Court in the case of Bharatiya Gramin Punarrachana Sanstha Vs. Vijay Kumar and Others, . It is further submitted that in view of the law laid down by this Court and the Apex Court in the said cases, it is not necessary to follow the said Rules while terminating the services of the person, who is appointed for a fixed period.
According to learned Counsel as per G.R. dated 5.12.1998, issued by the Government of Maharashtra, if the candidate for S.T. category is not available, then candidate from S.C. category can be appointed and as such respondent No. 1 herein does not belong to S.C. Category, he cannot be given benefit of Rule 9(9) (a) of the said Rules. It is further contended that, since respondent No. 1 accepted the appointment for a fixed period and had given undertaking, now is estopped from claiming right over the said post. It is further submitted that the Presiding Officer, School Tribunal declared respondent No. 1 as temporary employee and this finding is not challenged by respondent No. 1, which attained finality. According to learned Counsel for the petitioners, in case of appointment as temporary employee, it is not necessary to give any notice before termination of service and only intimation was given by the Head Master.
It is further submitted that since the S.T. Candidate was available, there was no question of applicability of Rule 9(9) (a) of the said Rules. It is further submitted that the Apex Court in the case of Kankavali Shikshan Sanstha and Others Vs. M.R. Gavali and Others, , was on different facts and the ratio laid down in that case is not applicable in the facts of this case. It is further submitted that the controversy in the present case is squarely covered by the Supreme Court judgment in the case of Bhartiya Gramin Punarrachana Sanstha (supra). It is further submitted that the petitioner No. 3 herein is working in place of respondent No. 1 and his appointment is not cancelled by the School Tribunal and thus, respondent No. 1 is not entitled for the reinstatement with back wages as the appointment of respondent No. 1 was for fixed period as he is held to be temporary employee and there is no contravention of Rule 28 of the said Rules and therefore, the writ petition be allowed. In the alternative, learned Counsel for the petitioner prayed for remand of the matter to the School Tribunal for fresh consideration.
Per contra, learned Counsel appearing for the respondent submitted that as per the advertisement issued by petitioner Nos. 1 and 2, it is clear that the said advertisement was issued to fill up permanent vacancy and after following proper procedure, he was selected and appointed for the post of Assistant teacher. He joined the services on 1.7.1996 for the academic year 1996-97. The Education Officer also approved the services of respondent No. 1 for the said academic year. The petitioners management again reappointed him since his work was found satisfactory. The said appointment was for the academic year 1997-98 and the same was permanent and clear vacant post. The Education Officer also approved the services of respondent No. 1 as Assistant Teacher, even for the said academic year. Learned Counsel further submitted that the respondent No. 1 has completed continuous two years service on clear vacant post in petitioner management, therefore, he is entitled for being permanent. Learned Counsel placed reliance on provision of Section 5(2) of the said Act and has submitted that there is obligation on the management to fill the post in prescribed manner. It is further submitted that there is no dispute that respondent No. 1 was duly qualified teacher on the relevant date of his appointment. It is further submitted that throughout, the case of respondent No. 1 is that his appointment as Assistant teacher on clear vacancy and permanent post from June, 1996 though written appointment order was given to him. Learned counsel further submitted that respondent No. 1 has completed probation period of two years and by virtue of completing two years period of service, he deemed to be a confirmed employee. It is further submitted that there is no discretion left with the management and after completion of two years period of service, as Assistant Teacher, the confirmation would automatically follow. According to the learned counsel, only condition is that the appointment should be against the permanent vacancy and respondent No. 1 was appointed against permanent vacancy.
It is further submitted that no evidence was led before the School Tribunal by the management in support of their contention that the said post was reserved for S.T. candidate on temporary basis. According to learned Counsel, assuming that the appointment of respondent No. 1 was against the reserved post on temporary basis then appointment as per Rule 9(9)(a) of the said Rules, it is clear that if the vacancy reserved for a particular backward class candidate and in case no candidate is available from the said category, the candidate belonging to another backward category can be appointed on regular basis. The temporary appointment can be made only where no candidate from any backward category is available. It is further argued that respondent No. 1 belongs to N.T. category and was appointed to fill in the vacancy earmarked for S.T. category candidate. Initially, the appointment of respondent No. 1 is not permissible on year to year basis and shall be construed as regular appointment. According to the learned Counsel as per the mandate provided under Rule 9(9)(a) of the said Rules and Rule 9(7), in case the candidate from any particular category is not available, the candidate from any other remaining categories is required to be appointed. If the candidate applied for the post from any other backward class, no year to year appointment can be given and said appointment is deemed to be against the permanent vacancy. Learned Counsel further submitted that relevant documents were produced before the School Tribunal showing that he is from N.T. category and not only that but even at the time of interview, conducted by the petitioner management, respondent No. 1 had shown his caste certificate as well as leaving certificate showing that he is from backward class.
The learned Counsel further submitted that Hon''ble Supreme Court as well as Bombay High Court had occasion to interpret Rule 9(9)(a) and 9(7) of the said Rules in following reported judgments:
i) New Education Institute and Others Vs. Mahejabin Ashfak Ahmed Shaikh and Others,
ii) 2005 (4) Mh.L.J. 885
iii) The Chairman, Shri Chhatrapati Shivaji Maharaj Shikshan Sanstha and Another Vs. Chandrashekhar S. Giwari and Others,
iv) 2009 (3) Mh.L.J. 605
v) 2009 (4) Mh.L.J. 67
vi) Kankavali Shikshan Sanstha and Others Vs. M.R. Gavali and Others,
On the basis of the above judgments, learned Counsel submitted that vacancy reserved for a particular category of backward class under Rule 9(9)(a), a candidate belonging to any backward class category can be appointed on regular basis and temporary appointment can be made only where no candidate from any backward category is available. The power to make temporary appointment is not available where the post is reserved for a particular backward class category, is filled in by the candidate from another backward class category. He further submitted that in the instant case, approval of the Education Officer was granted to the appointment of the respondent No. 1, for the period for which he was appointed by the petitioners. According to learned Counsel, the approval assumes importance in case where grant in aid is provided by the said authorities. Learned Counsel further submitted that this Court had occasion to interpret Section 5 of the said Act and this Court has held that though the technical appointment on year to year basis are given and if the employee has completed two years of unblemished service, then he is deemed to be permanent employee of the said institute. Learned Counsel appearing for respondent No. 1 submitted that the School Tribunal after appreciation of contention of the respective parties and documents placed on record, has arrived the proper conclusion and held that no interference is called for under Article 227 of the Constitution of India when the findings recorded by the Tribunal are not perverse, in any manner, therefore, he prayed that the interim relief may be vacated and writ petition be dismissed.
I have heard learned Counsel appearing for the petitioners and respondents at great length. I have carefully perused the pleading in the petition and annexures thereto. I have also perused the judgment and order passed by the Presiding Officer, School Tribunal, Aurangabad Division, Aurangabad. On careful perusal of the advertisement dated 27.5.1996, which was first in time, would show that the said advertisement was issued by the petitioner Nos. 1 and 2 inviting applications for the post of three Assistant Teachers and one peon. It is mentioned in the said advertisement that, the candidate belongs to backward class and the female candidate would be given preference. It is also mentioned in the said advertisement that in case no suitable candidate is found for appointment to fill up the backlog, then other candidate would be considered for the said post.
In pursuance to the said advertisement, respondent No. 1 came to be appointed. The appointment letter is at Exh.T at page 104. The said appointment letter shows that the appointment is for temporary period and services can be terminated without giving any notice. However, no period is mentioned for which the appointment is given to respondent No. 1, it is mentioned in the said appointment letter that the said appointment is against backlog. The said appointment is made in the pay scale of Rs. 1200-2040.
10 On page 105 Exh. U, is an undertaking given by respondent No. 1 herein where he has mentioned that the appointment is for temporary period of 1996-97 and after this period is over, he will have no right over the post and same undertaking is given with free will. There is second advertisement at Exh. V dated 13.6.1997 calling applications for the post of Assistant Teachers and one peon. It is mentioned in the said advertisement that out of three posts for Assistant Teachers, one post is reserved for S.T. category.
In pursuance to the said advertisement again respondent No. 1 was appointed as Assistant Teacher. His appointment letter is at Exh. W page 107 dated 16.6.1997. It is mentioned in the said appointment letter that the said appointment is against the post reserved for S.T. category. The said appointment is for temporary period etc. It is specifically mentioned that the said appointment is up to 30.4.1998 for temporary period. In the said appointment letter at the bottom there is undertaking by respondent No. 1 in which he has stated that said appointment is till 30.4.1998 and he will not claim further continuation after 30.4.1998 on the said post as Assistant Teacher.
At Exh X page 108 there is termination order which is signed by the Head Master of the school, who is petitioner No. 1 herein.
There is further advertisement at Exh. Y dated 21.5.1998. In the said advertisement, it is disclosed that the preference will be given to the experienced candidate, who belongs to backward class or to the woman candidate. It is further mentioned that the preference would be given as per the reservation as provided under Rules. Exh. Z shows that the appointment given to the petitioner No. 3 is against the said advertisement.
The School Tribunal had broadly considered two aspects of the matter. Firstly whether the termination order issued to respondent No. 1 by petitioner No. 2 is in contravention of Rule 28 of the said Rules and secondly whether it was permissible for petitioner Nos. 1 and 2 to appoint respondent No. 1, who is from NT category, on an year to year basis taking recourse of Rule 9(9)(a) of the said Rules.
Careful perusal of the pleading in the appeal filed before the School Tribunal by respondent No. 1, would show that his case before the School Tribunal was that, he was appointed for two years, he has completed his services satisfactory and he himself belongs to backward class i.e. N.T. and therefore, his appointment cannot be temporarily and he becomes deemed permanent employee of petitioner No. 1 in view of the provisions Section 5 of the said Act.
It is not necessary to go into the details since the findings recorded by the School Tribunal on interpretation of Rule 9(9)(a) of the said Rules is more or less covered by the judgment of this Court as well as the Hon''ble Apex Court.
Learned Counsel appearing for the petitioners tried to submit that the appointment of respondent No. 1 herein was against the reserved post for S.T. candidate and the said appointment was for fixed period and therefore, as soon as that period is over, the services of respondent No. 1 has come to an end. According to leaned counsel, the Hon''ble Supreme court had occasion to consider the case having almost similar facts in case of Bhartiya Gramin Punarrachana Sanghtana (supra). According to learned Counsel, the Hon''ble Apex Court in the said decision held that the order of appointment specifically mentions that after expiry of the period mentioned in the appointment order, the services of the respondent therein came to an end. Since the appointment letter itself stipulated the period of appointment and on the last day of the service, it is not necessary for the employer to give any notice to the employee on the day on which the period mentioned in the appointment order, comes to an end, the services of the employee are automatically terminated. According to the learned Counsel, the Hon''ble Apex Court has interpreted Section 5 of the said Act and held that if the time is stipulated in the appointment order and undertaking is given by the concerned employee, then in that case the services of the employee will come to an end automatically on the last date mentioned in the appointment order. On the basis of the said judgment learned Counsel tried to contend that in the present case also there was no question of following any procedure under Rule 28(1) of the said Rules since undertaking was given by respondent No. 1 herein and in his appointment letter it was mentioned that the services of the respondent No. 1 would come to an end on 30.4.1998. Learned Counsel further submits that Tribunal was not right in holding that the provisions of Rule 28(1) of the said Rules are not followed by the petitioners.
The learned Counsel placed reliance on the reported judgment of this Court in the case of Akbar Peerbhoy College and others Vs. Pramila N. Kutty (Ms.) and others., and submitted that Rule 28 sub Rule 1 of the said Rules is attracted in situation where either there is no period stated in the appointment order of temporary employee and services are sought to be brought to an end or whether the period is stated in the appointment order for such temporary employee and the management intends to terminate the services of such temporary employee earlier than the period stated in the appointment order. In case where the appointment of temporary employee was for fixed period and the services of such temporary employee comes to stand still on the expiry of that fixed period, giving a notice as contemplated under Rule 28 Sub Rule 1, is not required and no specific termination order is required to be passed because in the appointment order itself the period of appointment is fixed and on expiry of the that period itself, the services of respondent No. 1 came to an end automatically. Therefore, the submissions of the learned counsel for the petitioner is that the School Tribunal was not right in holding that the management has not followed the procedure under Rule 28(1) of the said Rules.
Though the submission of the learned Counsel for the petitioners appears to be attractive, the appointment of respondent No. 1 herein under Rule 9(9)(a) on an year to year on temporary basis, was not permissible in view of the fact that the respondent No. 1 himself is from backward class i.e. N.T. category. Rule 9(9)(a) reads as under:
In case it is not possible to fill in the teaching post for which the vacancy is reserved for a person belonging to a particular category of Backward class, the post may be filled in by selecting a candidate from the other remaining categories in the order to specified in Sub-rule (7) and if no person from any of the categories is available, the post may be filled in temporarily on an year to year basis by a candidate not belonging to the Backward Classes.
On plain reading of Rule 9(9) (a) of the said Rules, it is clear that in the present case, if petitioner Nos. 1 and 2 wanted to fill in the teaching staff of, vacancy reserved for a person belonging to a particular category of class and if candidate from said category is not available then post should have been filled in from other categories, in case no candidate was available from other categories, then the post should have been filled in on temporarily on an year to year basis by a candidate not belonging to the backward classes. In the instant case, respondent No. 1 is from N.T. category, which is included in backward class. Sub-rule (7) of Rule 9 reads thus:
(7) The management shall reserved 34 per cent of the total number of posts of the teaching as well as non teaching staff for the members of the Scheduled Castes, Scheduled Castes coverts to Buddhism, Scheduled Tribes, De notified Tribes, Nomadic Tribes and other Backward classes as follows, namely;
(a) Scheduled Castes and Scheduled Castes coverts to Buddhism
13 per cent
(b) Scheduled Tribes including those living outside the specified areas
7 per cent
(c) De notified Tribes and Nomadic Tribes
4 per cent
(d) Other Backward Classes
10 per cent
The above rule itself shows that the management shall reserved 34 per cent post for the members of S.T, S.C. converted Buddhism, S.T. including those living outside the specified areas, De notified tribes and Nomadic Tribes and other Backward classes.
It was not open for petitioner Nos. 1 and 2 to appoint respondent No. 1 under Rule 9(9) (a) of the said Rules on an year to year basis for temporary period. The Apex Court had occasion to interpret Rule 9(9) (a) of the said Rules in the case of Shakuntala Ganpatsa Shirbhate Vs. Industrial Weaving Co-operative Society and others, . In the said case, the Supreme Court has held that since the appellant therein is member of one of the backward class referred to in the said Rules, she was entitled for regular appointment in the very first year when no persons belonging to N.T. category was available.
Yet, in another case Kankavali Shikshan Sanstha and Ors. (Supra) the Hon''ble Supreme Court had occasion to interpret Rule 9(9)(a) of the said Rules relying on the ruling reported in Shakuntala Ganpatsa Shirbhate Vs. Industrial Weaving Co-operative Society and others, and held that ;
in absence of a candidate belonging to the reserved category concerned, the rule enjoins year to year appointment only if a available candidate does not belong to a backward class. Respondent belonging as he does to a backward class was entitled to a regular appointment. The subsequent appointment of 3rd respondent operates to displace the first respondent because in any event much prior thereto the first respondent had duly crystallized the right.
This Court had also occasion to interpret Rule 9(9) (a) of the said Rules in the case of Bhairavnath Shikshan Mandal Pune and Ors. v. Raju Haribhau Thombe reported in 2009 (3) Mh.L.J. 605. This Court held that:
It is clear that under Rule 9(9) (a), where the vacancy is reserved for a particular backward class candidate a candidate belonging to another backward class category can be appointed only on a regular basis, a temporary appointment can be made only where no candidate from any backward category is available. As a consequence it must also be held that the power to make temporary appointments is not available where a post reserved for a particular backward class category is filled in by a candidate from another backward class category.
This Court in para 7 of the said judgment, has also observed that in the case of Shakuntala Ganpatsa Shirbhate (supra), Their Lordships held as follows:
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 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 a available candidate does not belong to a backward class. The respondent belonging as he does to a backward class was entitled to a regular appointment.
Therefore, on perusal of Rule 9(9) (a) and interpretation given to the said Rule by the Apex Court as well as this Court, it was not permissible for petitioner Nos. 1 and 2 to appoint respondent No. 1, who is from N.T. category on an year to year basis under Rule 9(9)(a) of the said Rules. Therefore, his appointment can only be on regular basis;
Though, it is contended by the learned Counsel for the petitioners that the appointment of respondent No. 1 was on an year to year basis and the said appointment came to an end on 30.4.1998 in that regard. It is to be concluded that the very appointment of respondent No. 1 under Rule 9(9)(a) of the said Rules on an year to year basis for temporary period is not sustainable, in view of the fact that he himself belongs to N.T. category. Though technically, year to year appointment letters are issued, said appointment can only be on regular basis. This Court had occasion to consider similar situation i.e. year to year basis appointment in the case of New Education Institute and Others Vs. Mahejabin Ashfak Ahmed Shaikh and Others, . In para 10 it is held that:
Section 5 sub section (2) expressly provides that when any person is appointed to fill a clear permanent vacancy, he shall be appointed on probation for period of two years. Thus, the management ought to have appointed respondent No. 1 for a period of two years and not limited the appointment for a period of one year. Rule 9 is explicit as it indicates the manner in which the vacancy is to be filled. Thus, it was incumbent on the petitioners to appoint respondent No. 1 on probation for two years against the permanent clear vacancy.
In the present case, the Tribunal has observed in para 12 that the appellant was appointed against the post reserved for S.T. category. It was not necessary for Head Master to terminate his services by way of notice dated 30.4.1998. Respondent No. 1 has served in the school for the academic year 1996-97 and 1997-98 i.e. for two years.
In my view, the appointment of the respondent No. 1 ought to have been on regular basis since he belongs to NT category. Therefore, reliance placed by the learned Counsel for the petitioner in the case of Akbar Peerbhoy College (supra) and Bhartiya Gramin Punarrachana Sanstha (supra) is misplaced in the facts of this case. In this case, it was not possible for petitioner Nos. 1 and 2 to appoint respondent No. 1 on temporary basis taking recourse to Rule 9(9) (a) of the said Rules since respondent No. 1 himself is from N.T. Category. Therefore, the above mentioned judgments are applicable in case of candidate appointed against the post meant for reserved category candidates from other than backward class candidate on an year to year basis.
In the present case, though the management has tried to contend before the School Tribunal that performance of respondent No. 1 was not satisfactory, ultimately failed to prove the same before the Tribunal.
In the given facts of this case, the Presiding Officer, School Tribunal, Aurangabad has properly appreciated and interpreted the Rule 9(9) (a) of the said Rules and in para 12 has held that, the petitioner Nos. 1 and 2 herein are governed by the provisions of Rule of Maharashtra Employees of Private Schools, (Condition of Service) Rules, 1981. It is significant to note that the appellant/respondent No. 1 who belongs to the N.T. category from backward class. The copy of his caste certificate dated 8.5.1995 shows that he belongs to caste Wanjari which is N.T. category. If the candidate from S.T. category was not available and the appellant was given appointment in his place, the management had to follow Rule 9(9) (a) of the said Rules. Under this provision, at the initial stage also the appellant could have been appointed on permanent basis. It is further held that the management has to note that the appointment of the appellant comes under Rule 9 sub Rule (7) of the said Rules.
Therefore, viewed from any angle, it will have to be held that the appointment of respondent No. 1 was clearly on permanent basis. It was not permissible for the petitioner Nos. 1 and 2 to appoint respondent No. 1 herein on an year to year basis for temporary period.
Taking over all view of the matter, it is concluded that the findings recorded by the School Tribunal are not perverse in any manner. The Tribunal has rightly set aside the order dated 30.4.1998, thereby terminating the services of respondent No. 1 herein and was perfectly justified in directing the petitioners to reinstate the respondent No. 1 herein with 75% back wages. No interference is called for under Article 227 of the Constitution of India.
The alternate prayer of the learned Counsel for the petitioners to remand the matter back to the Tribunal, has no force in view of the interpretation put to Rule 9(9)(a) of the said Rules by the Hon''ble Apex Court as well as by this Court and the School Tribunal itself. No purpose would be served in remanding the matter back to the School Tribunal when the findings recorded by the School Tribunal are not perverse. The Tribunal has taken into consideration the written statement filed by the petitioners herein and only thereafter concluded the matter. There is nothing on record to indicate that on the date of hearing the application was filed on behalf of the petitioners bringing it to the notice of the Presiding Officer that the learned advocate for the petitioners was seriously ill and in absence of request for adjournment, the School Tribunal has no portion but to proceed with hearing of the matter.
In the result, Rule discharged. Interim relief stands vacated. Writ petition is dismissed with no order as to costs.