WP/4787/1989 of VILASRAO S. PATIL Vs ASARONDI PANCHKROSHI SHIKSHAN PRASARAK MANDAL and on 24 November 1989

ORAL JUDGMENT :

1. The present Petition is under Article 226 and 227 of the Constitutionof India, filed by the petitioner (Assistant teacher) and thereby, has challenged theorder and judgment dated 27[th] October, 1989, passed by the Presiding Officer,School Tribunal, Mumbai [for short “Tribunal”], in Appeal No. GEN/71/SND/3 of1988, whereby, the Tribunal, had allowed the Appeal but only granted the benefitunder Section 11(2)(e) of the Maharashtra Employees of Private Schools(Conditions of Service) Regulation Act, 1977 (for short “MEPS Act”) anddirected to pay six months' salary by way of compensation instead ofreinstatement, although the termination order dated 30[th] March, 1988, of thepetitioner was set aside. The Petitioner, being aggrieved, therefore, has basicallyprayed for reinstatement as permanent Assistant Teacher and all other benefits.

2. Heard the learned counsel appearing for the parties. The basic issuewhich needs to be answered in this Petition is the right of the petitioner, being anopen category candidate, to have a status of permanency as Assistant Teacher on a reserved post.

3. The provisions of the MEPS Act and the Rules made thereundergovern the recruitment and conditions of service of employees in private Schools.The relevant Sections are Sections 4, 5 and 9. The relevant Rules are called theMaharashtra Employees of Private School Rules [for short `MEPS Rules']. Therelevant Rules, which covers the case in hand, are Rule 9 and 28.

4. The petitioner was appointed temporarily in the post of AssistantTeacher for the period 1984-1985 and 1985-1986. Thereafter, he was appointedon probation for a period of two years under Section 9(5) of the MEPS Act. Thesaid appointment order itself contained a clause that his appointment would besubject to the approval of the Education Department of District Sindhudurg. Therespondent-Management, however, by an order dated 30[th] March, 1988, terminatedthe services of the petitioner. The petitioner, therefore, preferred an Appeal underSection 9 of the MPES Act and Rules. The School Tribunal, after considering thecontentions raised, including the written submissions filed by respondents, passedthe impugned order and held that the impugned termination notice dated 30[th]March, 1988, was illegal, invalid and improper. Accordingly, the Appeal wasallowed. However, not granted reinstatement with back wages, after recording thestatement that 'a suitable substitute from S.T. category is posted'. The respondents were directed to give him six months salary only.

were directed to give him six months salary only.

5. It appears from the record, as well as, the Written Statement filed bythe Management that the post in question was reserved for SC/ST candidate. Asper the advertisement, the petitioner was appointed for the respective years, subjectto the approval from the Education Department, Zilla Parishad, Sindhudurg. Thesaid appointment was purely temporary. As there was no candidate available,belonging to the said reserved category, petitioner was appointed temporarily, onthe said post. The said process was continued for two years more. Therespondent's case is that as the candidate belonging to the reserved category werenot available or did not respond to the advertisement and, therefore, were left withno choice, but to appoint the petitioner on a temporary basis. The foundation ofthe respondents cannot be overlooked as the post was meant for reservedcategories and this post was always subject to the approval from the EducationDepartment. There is no dispute that the petitioner belongs to the open category.The petitioner's entitlement to enjoy the post, in the circumstances, would besubject to the non-availability of reserved category candidate or such othercandidate. The fact that he was appointed from time to time from the year 1984upto 1987-1988, by that itself, nowhere gives any right to such candidate to claimpermanency, even after expiry of the alleged probation period, in the facts andcircumstances of the case.

6. In this background and in view of the submission as raised and asreferred in the Written Statement, as well as, recorded by the Tribunal in paragraph9, I am also of the view that now, at this stage, i.e. after more than 15 years, it isdifficult to accept the prayer of reinstatement. The finding given by the Tribunal isalso justified to maintain the order to the effect that 'unless the said post becomesde-reserved', a candidate appointed temporarily on such vacancy of ST/SCcategory would have only status of 'temporary' candidate.

7. A candidate from the open category cannot claim a right ofpermanency, on the said reserved post. There is nothing pointed out that such postbecomes de-reserved automatically after lapse of time or any other such things. Inthe circumstances, appellant being open category candidate would have no right tohold the post meant for reserved category candidate. The `quota' or any actionbased on the Reservation Policy cannot be disturbed without following the dueprocedure of law.

8. It needs to be mentioned here that if candidates belonging to theSC/ST category are not available, the petitioner's case may be considered by theManagement, if there is still a vacancy and/or the post is still required to be filledin. However, the Management is at liberty to consider this aspect, if a case is made out on merit.

9. In view of this observation, I decline to interfere with the findingrecorded by the Presiding Officer, School Tribunal, dated 27[th] October, 1989,hence termination is upheld.

10. The Writ Petition is accordingly disposed of. No order as to costs.

Certified copy expedited.

[ANOOP V. MOHTA, J.]