1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.3784 of 1998 Rajarshi Chatrapati Shahu Vidya Prasarak Mandal & anr. Petitioners Vs. Smt.Surekha Kisan Dhake & ors. Respondents Ms.Gauri Godse for petitioner. Mr.R.S.Apte for resp.no.1. Mr.M.S.Karnik for resp.no.2. Mr.S.P.Kadam for resp.no.4. With Writ Petition No.4485 of 1998 Shri Dhanaji Manga Pawar Petitioner Vs. Rajarshi Chatrapati Shahu Vidya Prasarak Mandal & ors. Responents Mr.M.S.Karnik for petitioner. Ms.Gauri Godse for resp.nos.1 and 2. Mr.R.S.Apte for resp.no.3. Mr.Sanjeev Kadam for resp.no.5. CORAM: B.H.MARLAPALLE, J. February 21, 2008 ORAL JUDGMENT: 1. Both the petitions impugn the judgment and order dated 16/7/1998 passed by the School Tribunal at New Mumbai thereby allowing Appeal No.144 of 1997 (old Appeal No.34 of 1996) filed by the respondent 2 no.1 in the first petition. The first petition has been filed by the management i.e. Respondent nos.1 and 2 before the School Tribunal and the second petition has been filed by the respondent no.3 before the School Tribunal. 2. As per the appellant on 12/6/1994 she came to be appointed as an Assistant Teacher in the primary school run by Rajarshi Chhatrapati Shahu Vidya Prasarak Mandal at Ulhasnagar on the basis of her qualifications of S.S.C. + D.Ed. and the said appointment was only upto 31/3/1995. The said appointment was terminated as per the notice dated 20/3/1995 and in response to a fresh advertisement released and the application submitted by the appellant thereto, she was issued an appointment order dated 13/6/1995 but again for the academic year 1995-96. By notice dated 4/4/1996 she was informed that her tenure had come to an end and on receipt of the said notice she approached the School Tribunal in Appeal No.34 of 1996 (old number) and urged that the said order was illegal and she was required to be protected under Sections 4(6) and 5(3) of the MEPS Act, 1977 ("the Act" for short) and Rules 9(7) and 9(9)(a) of the MEPS Rules (for short "the Rules). It 3 short it was contended by her that she had worked during two academic years against a post reserved for the Scheduled Tribe and as she belongs to the Other Backward Class, she was entitled to be appointed on permanent basis in the very first academic year i.e. 1994-95 in view of the law laid down by the Supreme Court in the case of Kankavali Shikshan Sanstha & ors. Vs. M.R. Gavali & ors. [2006 (1) Mh.L.J. [2006 (1) Mh.L.J. [2006 (1) Mh.L.J. 713] 713] 713] as well as in the case of Shakuntala G. Shirbhate Vs. Malinagar Industrial Weaving Co-operative Society [AIR 1994 SC 36] [AIR 1994 SC 36] [AIR 1994 SC 36]. She placed reliance on Rule 9(7) and 9(9)(a) of the MEPS Rules and submitted that in response to her application dated 28/5/1994 she was required to be appointed on probation against a post reserved for ST as a candidate belonging to the said category was not available and as she came from OBC category, she was entitled to be absorbed on permanent basis rather than issuing an appointment order on year to year basis. She further stated that even otherwise when she submitted her second application on 2/6/1995, her claim ought to have been considered for appointment on probation rather than on temporary basis for the academic year 1995-96. On these counts the appellant had claimed before the School Tribunal that she was a 4 deemed permanent teacher and the impugned notice of termination was illegal. The management appeared before the School Tribunal, files its Written Statement and opposed the appeal. The management denied that the appellant had furnished any information as belonging to OBC and further stated that her applications dated 28/5/1994 as well as 2/6/1995 were considered against an open category and having accepted the appointment letters against a post reserved for ST, the appellant was estopped from challenging the legality of these appointment orders. There was no reason to file an appeal under Section 9 of the Act as the tenure of the appellant had come to an end by efflux of time and there was no termination as such at the hands of the management. It was further pointed out that in the academic year 1996-97 when the management released an advertisement candidates belonging to Scheduled Tribe had responded and the respondent no.3 before the School Tribunal came to be selected as he belongs to S.T. category. During the pendency of the appeal he was made permanent and, therefore, the appeal was required to be dismissed. 3. The School Tribunal was obviously impressed by 5 the contentions raised by the appellant and by relying upon the law laid down in the case of Shakuntala Shirbhate (Supra), it held that the termination notice was illegal and the appellant was required to be appointed against the permanent vacancy reserved for ST as she belongs to OBC. So far as the respondent no.3 is concerned, it was observed by the trial Court that if there was sufficient workload available, he could be continued and in case he is found to be surplus, the management will submit a report to the Education Department so that he is absorbed in some other Municipal School as a surplus teacher against a vacancy available for the ST. 4. The reasoning set out by the Tribunal in support of the impugned order cannot be accepted in its entirety and it appears that the Tribunal did not apply its mind to some admitted facts. Firstly in her application dated 28/5/1994 the appellant did not disclose that she belongs to OBC. She had disclosed her date of birth as 23/5/1965 and the age as 29 years. Consequently as an open category candidate, she was not entitled to be appointed as an Assistant Teacher in any primary school in view of Rule 9(4)(a) 6 of the Rules and thus the appointment order issued to her on 18/6/1994 was illegal. The School Tribunal, therefore, committed a manifest error in treating that in the year 1994-95 the appellant had a valid claim as belonging to OBC. . Secondly in her application dated 2/6/1995 the appellant stated that she belongs to OBC (Hindu Leva Patidar) and admittedly Hindu Leva Patidar is a caste which is included in OBC in the State of Maharashtra. However, along with this application no caste certificate was submitted and though the management in its advertisement did not state that the post was reserved for OBC or any other reserved category, the appointment letter dated 5/6/1995 clearly stated that the appellant was appointed against a post reserved for ST. At the same time it must be noted that the caste certificate which has been brought on record in this petition by Ms.Godse, the learned counsel for the management and purportedly issued by the Executive Magistrate, Kurla on 30/9/1995, indicates that the appellant belongs to the Kunbi caste which is listed at Serial No.83 in the Government Resolution by the State of Maharashtra. There can be no dispute that the caste Kunbi and Leva Patidar are 7 different but Mr.Apte states that caste Leva Patidar is a sub-caste of Kunbi. The fact remains that at no point of time till the impugned termination notice was issued, the appellant raised any such grievance that she was entitled to be absorbed on permanent basis as she belongs to OBC. Even otherwise in the academic year 1995-96 she worked as an Assistant Teacher from 13/6/1995 to 13/4/1996 and on the same basis it was not permissible for the School Tribunal to hold that she was either a deemed permanent teacher or she had completed two years of service successfully. 5. However, it appears from the record that when the appellant was appointed in the academic year 1995-96 against a post reserved for ST, the proposal for approval sent to the Municipal School Board at Ulhasnagar Municipal Corporation was as an open category candidate and not an OBC candidate. The management was aware while issuing the appointment order dated 5th June, 1995 that the appellant belongs to OBC and, therefore, it was necessary for the management to consider her candidature more so in the absence of any other ST category candidate in the academic year 1995-96 for regular appointment in view 8 of the law laid down by the Supreme Court in Shakuntala Shirbhate’s case (Supra). The impugned order of the School Tribunal is, therefore, required to be varied only on that point and to the extent that the temporary appointment made in the year 1995-96 was illegal and the said appointment could have been on probation. One cannot say as a matter of fact and certainty that at the end of the probation period, the appellant could have been absorbed on completion of satisfactory probationary period and, therefore, the effect of reinstatement could be only to the extent to continue the second year of probationary period as is mandatory under Section 5 of the Act. 6. Having considered these adversities against the respective parties the management as well as the appellant including the respondent no.3 stated before this Court that they would be willing to accept any compromise provided the interest of all the parties are protected and the management is not saddled with any additional financial burden. Mr.Kadam, the learned counsel appearing for the Municipal School Board has received written instructions from the said Board and as per the same as at present there are 12 9 vacancies of Scheduled Tribe and 18 vacancies of VJNT available in different schools under the said Board i.e. Ulhasnagar Municipal Corporation School Board. The Administrative Officer of the said Board in his written instructions dated 15/2/2007 and addressed to Mr.Kadam states that the petitioner in the second petition and the respondent no.3 before the School Tribunal could be absorbed as a surplus teacher against a vacancy available for Scheduled Tribe. In that eventuality, as per Ms.Godse the learned counsel for the management, the management is willing to absorb the appellant against the available vacancy on account of the absorption of the petitioner in the second petition in some other school by the Municipal School Board At the same time she states that the management will not be in a position to bear the burden of backwages as has been directed by the impugned order of the School Tribunal. Mr.Apte, the learned counsel for the appellant submitted that the proposal for absorption of the appellant in the original post is acceptable to her provided her seniority is protected and the benefit of continuity in service is granted to her so that the retiral benefits are not adversely affected. Ms.Godse, the learned counsel for the management, on instructions, 10 has consented for the same. So far as the claim of the backwages is concerned, having noticed some serious errors in the impugned order passed by the School Tribunal, there is no case made out to grant backwages and, therefore, the impugned order will have to be modified to that extent. 7. In the premises, these petitions are partly allowed in terms of the following order: (a) The appellant shall be reinstated as an Assistant Teacher in Matashri Ramabai Ambedkar Vidya Mandir or any other primary school run by Rajarshi Chatrapati Shahu Vidya Prasarak Mandal at Ulhasnagar with continuity of service with effect from 13/6/1995. At the same time she shall not be entitled to claim backwages and the order passed by the School Tribunal for the same is hereby set aside. (b) The petitioner in second petition shall be absorbed as a surplus teacher by the respondent no.5 - Municipal School Board forthwith or in the next academic year as the case may be and till his absorption he will continue to be retained as at present and will be entitled for his normal salary 11 till his absorption. (c) The appellant to join within one week from today and the petitioners in the first petition shall submit her proposal for approval to the respondent no.4 - Municipal School Board within two weeks therefrom and the same shall be cleared expeditiously by the Board. 8. Rule is made absolute accordingly with no order as to costs. (B.H.MARL