1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8190 OF 2009 Chandru Shamrao Bhalkar .. Petitioner Vs The General Secretary, Kasegaon Education Society and others .. Respondents S.S. Pakale i/b Kirankumar Phakade for the petitioner Nitin Deshpande for respondent nos. 1 to 3 Ms. A.D. Vhatkar, AGP for respondent no. 4 CORAM : Smt. V.K. TAHILRAMANI, J. DATE : 22nd September, 2009 P.C.: 1. Heard the learned counsel for the petitioner ­ the original appellant, the learned counsel for respondent nos. 1 to 3 and the learned AGP for respondent no. 4. 2. Rule. By consent, rule is made returnable forthwith and the petition is heard finally. 3. This petition impugns the judgment and order dated 14th September, 2009 passed by the School Tribunal, Kolhapur Region, RMA wp8190­09.sxw 2 Kolhapur in Appeal No. 107 of 1997. By the said judgment, the School Tribunal has dismissed the appeal filed by the petitioner against his termination dated 10th March, 1997. 4. The petitioner was appointed as a part time assistant teacher in Modern High School, Sakharale in Sangli District w.e.f 24th July, 1989. The said school is run by respondent no. 1. Respondent no. 1 is also running Kanya Junior College at Uran­Islampur. Since 1st August, 1992, the said Sakhrale school was connected to the college at Islampur. On 1st August, 1992, the petitioner was appointed as a part time assistant teacher in mathematics in Kanya Mahavidyalaya (Junior College) Uran Islampur, Dist. Sangli. The case of the petitioner is that as he was earlier working in Sakharale as a part time teacher and he was also appointed in Kanya Mahavidyalaya as a part time teacher, hence on his appointment in Kanya Mahavidyalaya, his workload came to 21 hours. Hence, he relied on the circular wherein it is stated that part time junior college teachers who work in more than one junior college under the same management and put in full time work of 18 clock hours should be treated as full time junior college teachers. Relying on RMA wp8190­09.sxw 3 this circular, the petitioner made request to respondent nos. 1 to 3 to be treated as full time teacher. His grievance is that instead of giving him full time appointment, the respondent management by its order dated 10th March, 1997 terminated his services illegally. 5. The learned counsel for the petitioner submitted that the petitioner was appointed as a part time teacher in Sakharale and his appointment was on probation. He submitted that as the petitioner had completed more than two years in service in the said school, he ought to have been made permanent. He contended that once the petitioner completed two years successfully in the said school, a right will be created and under Section 5(2) of the M.E.P.S. Act, he will become permanent employee and on appointment as part time in Kanya Mahavidyalaya also, he would become a full time teacher. He further submitted that the appointment of the petitioner was against a clear permanent vacancy and hence, without following procedure, services of the petitioner could not have been terminated. 6. It is the case of the management that the post was not a clear vacant post but the post was reserved for candidates from ST and RMA wp8190­09.sxw 4 VJNT category candidates. As the management did not receive any application from the said reserved categories, the petitioner came to be appointed. Admittedly, the petitioner is from open category. The learned counsel Mr. Pakale submitted that no roster has been produced by the management to show that the posts were reserved posts and there is no material at all to show that the said posts were reserved posts. As far as this aspect is concerned, it is seen that the petitioner in his appeal before the Tribunal had filed advertisement published in "Daily Sakal" dated 6th May, 1988 wherein the respondent management invited applications to fill in 16 posts of assistant teachers out of which one post of a teacher teaching math subject was a part time post. It is pertinent to note that all these posts which were advertised were reserved for S.T. and V.J.N.T. category candidates. To the present petition also, the said advertisement has been annexed. It is the case of the petitioner that he came to be appointed pursuant to the said advertisement. Thus, it cannot be said that there is no material to show that the post was meant for reserved category candidate. Thus, I find no merit in this contention. RMA wp8190­09.sxw 5 7. It is seen that the appointment of the petitioner was not made in pursuance of any advertisement by the respondent management. The advertisement was published only for the candidates for reserved category. Therefore, though the petitioner was appointed as a untrained graduate teacher by the management from time to time and though the petitioner improved his qualifications and became a trained graduate teacher later on, his appointment is de­ hors the procedure of appointment. There was no advertisement for open category candidates, there was no healthy competition amongst eligible candidates, there was no interview relating to the petitioner and other eligible candidates, there was no selection made by the competent authority nor due procedure of law was followed while appointing the petitioner as a part time assistant teacher. Moreover, his appointment all the while was as a temporary employee and such a temporary employee has no right of permanency in service. In this context, I may usefully refer to the decisions of the Supreme Court in State of Karnataka and others Vs Umadevi and others reported in 2006 II CLR 261 in which the bench of five Honorable Judges of the Supreme Court held that RMA wp8190­09.sxw 6 unless the appointment was in terms of relevant rules, no rights are conferred on appointee. Contractual appointment comes to an end at the end of the contract. A temporary employee cannot claim to be made permanent on the expiry of the term of appointment merely because he is continued beyond the term of his appointment, it does not entitle him to be absorbed in regular service or made permanent. By virtue of long service an ad­hoc employee does not acquire any right to permanent appointment. The application made by the petitioner with the respondent management from time to time shows that those applications are in his own handwriting and are on simple paper. The petitioner could not show that he has made applications in a prescribed form prescribed by the management in pursuance of any advertisement. Moreover, it is seen that the petitioner obtained B.Ed. qualifications in 1993 therefore, at the time of his initial appointment in 1989 and 1992, he was aN untrained graduate teacher. His application is not in pursuance of the advertisement as he was not qualified at that time to be appointed even as a part time assistant teacher for want of B.Ed. qualification. He clearly RMA wp8190­09.sxw 7 did not satisfy the criteria mentioned in the advertisement. For a person to claim benefit of Section 5(2) of the MEPS Act, he has to be appointed in a permanent vacancy and he has to be duly qualified to fill such vacancy. The petitioner at the time of appointment both in 1989 and 1992 was not duly qualified for the post. 8. It is seen that the petitioner was appointed as a part time assistant teacher every year. The said appointment was for a temporary period of 11 months only. These appointments were against a reserved post as candidate from the reserved category were not available. Hence, it is difficult to accept that the petitioner was appointed against a permanent vacant post after following due procedure of law, especially in view of the fact that the petitioner is from open category. 9. The learned counsel for the petitioner submitted that the petitioner was appointed on probation and as the petitioner had completed two years of service, he would get benefit of Section 5(2), hence he would be deemed to be confirmed on account of which he cannot be terminated without following procedure. In support of his RMA wp8190­09.sxw 8 contention that he was appointed on probation, he has placed reliance on the appointment order of the petitioner dated 22nd July, 1989 wherein, he pointed out that it is mentioned "yours appointment is purely on probation". However, this is only part of the sentence. One cannot read a part of the the sentence. To find out the true and correct meaning, it is necessary to read the entire sentence and sometimes the entire document. The entire sentence in that para reads thus "'Your appointment is purely on probation for a period from 24.07.1989 for academic year 1989­90 after expiry of the above above period, your services shall stand terminated without any notice." The petitioner initially was appointed as part time assistant teacher on 22nd July, 1989 for academic year 1989­90. Though it is mentioned in the said appointment order that his appointment order is on probation, it is apparent that by mistake, the word "on probation" was not scored out. It cannot be even assumed that the employee can be appointed on probation for a period for one year. Therefore, it cannot lie in the mouth of the petitioner that he was appointed on probation of two years which he completed successfully. On the RMA wp8190­09.sxw 9 other hand, the said appointment order specifically states that the petitioner was appointed for academic year 1989­90 and after expiry of the said period, his services shall stand terminated without any further notice. The appointment order also shows that his appointment was in in the scale of Rs. 250­450 This shows that the petitioner was appointed as a part timer. He was continued as a part time assistant teacher in the next academic year w.e.f 19th July, 1990 and said appointment order also was for one academic year only. 10.Looking to the other facts, in the very same paragraph, it is very clear that the petitioner's appointment was only for a period of one year and his services shall stand terminated after that period. A person can never be appointed on probation for a period of one year. Such period is not visualized under the MEPS Act. Thus, it appears that the words "on probation" remained to be scored in the appointment order due to oversight. It is seen that thereafter from year to year, every year the petitioner has been appointed only for that academic year. All the appointment orders show that the petitioner was appointed as a part time assistant teacher for one RMA wp8190­09.sxw 10 academic year only purely on temporary basis and at the end of that academic year, his services would stand terminated without any notice. Thus, the petitioner failed to prove that he was appointed in a clear permanent vacant post, that he is a permanent employee and that his services were illegally terminated. The petitioner was only a temporary employee appointed for a fixed period from time to time hence, the petitioner does not acquire any status of a permanent employee as claimed by him. The petitioner being from open category and being appointed against the reserved post has no right of permanency nor he can be made permanent in service. Thus, his appointment all the while was of a temporary employee and such temporary employee has no right of permanency in service. 11.The learned counsel for the petitioner submitted that earlier the School Tribunal had decided the very same appeal in his favour. However, by the impugned order, the School Tribunal dismissed the appeal. He submitted that the School Tribunal could not have taken a different view and dismissed the appeal. However, it is seen that after the School Tribunal allowed the appeal, the said RMA wp8190­09.sxw 11 order was challenged before the High Court by filing writ petition no. 1388 of 2008. In the order passed in writ petition no. 1388 of 2008 dated 3rd March, 2009 in paragraph 4, it is specifically observed that the impugned order is set aside and the Tribunal is directed to decide the application for condonation of delay first and then proceed with the matter depending on the result of the application for condonation of delay. The learned counsel Mr. Pakale submitted that the matter was remanded back to the Tribunal only to decide on the aspect of condonation of delay and the Tribunal could not have touched the merits of the case. However, I do not find much merit in the submission because the order of this Court dated 3rd March, 2009 makes it clear that the impugned order was set aside and after application for condonation of delay is disposed of, if delay is condoned, then the Tribunal shall proceed with the matter and dispose it of within six months. It is evident from the order that if the delay was condoned, the matter was to be reheard on merit and then disposed of. This court has not observed that even if delay is condoned, the order of the School Tribunal allowing the appeal shall stand. Thus, no error can be RMA wp8190­09.sxw 12 found with the order of the School Tribunal. 12.Thereafter, Mr. Pakle submitted that the respondent management has not brought anything on record to show that the appointment of the petitioner was against the reserved post. He submitted that the management did not produce the roster before the Tribunal or before this Court. He submitted that as no material has been produced by the respondent to show that the post was meant for reserved category and as the petitioner has satisfactorily completed the period of probation, the petitioner ought to be reinstated. In support of his contention, he has placed reliance on the decision of this court in case of President, Mahila Mandal Sinnar, Nashik and Another Vs Sunita Bansidhar Patole (Smt) reported in 2007 I CLR 496. In the said case, an assistant teacher was appointed on leave vacancy for a period of 5 months. Thereafter, she was appointed on regular pay scale in 1988. Fresh appointment orders were given every year and the service was terminated in 1992. She challenged her termination before the Tribunal. The Educational Institution justified termination by alleging that the petitioner was merely appointed in reserved category with full understanding that her RMA wp8190­09.sxw 13 appointment would come to an end when reserved category candidate was found. The Tribunal allowed the appeal by holding that there is nothing to show that the appointment was in reserved category and directed reinstatement. This court upheld the said order by observing that in absence of material to show that the teacher's appointment was in the post meant for reserved category, it has to be held that she has satisfactorily completed probation and hence direction of her reinstatement was upheld. In the said case, the Tribunal as well as this court came to the conclusion that there was nothing to show that the teacher was appointed in the post meant for reserved category candidate. Mr. Pakale placed reliance on the observations in para 6 of this decision wherein it is observed "there is nothing on record to disclose that she was appointed in the post meant for the reserved category candidate. No roster was produced nor the materials on record are sufficient to disclose her appointment in the post meant for reserved category candidate" On this ground, the termination of the service of the assistant teacher therein was held to be illegal. Mr. Pakale has also placed reliance on observations in paragraphs 7 and 11 of the judgment RMA wp8190­09.sxw 14 which read as under: 7. It is not in dispute that the order of appointment issued on 1st July, 1988 to the respondent did not disclose that the same was meant for any fixed period. It did not disclose that the appointment was on temporary basis. It did not disclose that the appointment was on temporary basis. It did not disclose that the appointment of the respondent was in the post meant for the reserved category candidate. The order nowhere discloses that the appointment was liable to be terminated on availability of any reserved category candidate 11. In the case in hand, the petitioners at no stage of the proceeding, has produced the Roster so as to support their contention that the post which was occupied by the respondent was meant for reserved category candidate. It can hardly be disputed that the best method to ascertain whether the post is meant for reserved category candidate or not, is by following the roster maintained by the management. However, in spite of it being the beset piece of evidence to decide the point in issue, it is not understood why the petitioners have chosen not to produce the Roster either before the Tribunal or even in this Petition. There is no explanation forthcoming in that regard. There is no other cogent evidence to establish that the said post was reserved for reserved category candidate. RMA wp8190­09.sxw 15 In the present case, the petitioner himself had annexed the advertisement for the post to which he was appointed. The said advertisement clearly shows that the post was meant for reserved category. The said advertisement has also been annexed to the present petition. This advertisement was very much before the School Tribunal. In view of the advertisement which has been relied upon by the petitioner himself, it can certainly be said that the material on record is sufficient to disclose that the appointment of the petitioner was in the post meant for reserved category candidate. 13.In connection with the observations relied upon in para 6, 7 and 11, in the present case, it is seen that the appointment order clearly shows that the appointment of the petitioner was for a fixed period. It clearly discloses that the appointment of the petitioner was on temporary basis. The appointment order clearly states that the appointment of the petitioner would come to an end after expiry of the period mentioned in the appointment order. In the present case, there is cogent material on record to show that the post was meant for a reserved category candidate. When the petitioner RMA wp8190­09.sxw 16 himself has brought the material on record, there was no need for the respondent to again bring material on record on the same issue that the post was a reserved post. Moreover, the appointment order along with the advertisement clearly show that the appointment of the petitioner was in a post meant for reserved category candidate. The very fact that the petitioner has relied on the advertisement shows that he was very much aware that his appointment was for a post meant for reserved category. Thus, on reading the advertisement as well as the appointment order, it is clear that the petitioner's appointment was in reserved category post and it was for a fixed period and it was a temporary appointment. Thus, the said decision being distinguishable on facts, it would not apply to the present case. 14.Mr. Pakle thereafter submitted that when an advertisement is issued for a post, reservations have to be communicated post wise and in the present case, post wise reservation is not mentioned in the advertisement issued by respondent no. 1. He submitted that such advertisement would be bad and in support of his contention, he has placed reliance on the decision of Supreme Court in the case RMA wp8190­09.sxw 17 of Dr. Suresh Chandra Verma and others Vs Chancellor, Nagpur University and others reported in AIR 1990 SC 2023. However, as far as this aspect is concerned, it is seen that in the said decision, the advertisement was for reserved as well as unreserved posts for all the categories of posts i.e professors, readers and lecturers. Hence, in the fact circumstances of that case, the Supreme Court observed, ' it appears that while recommending the selections, the committee also gave weightage to the candidates belonging to the reserved castes. Neither the University nor the candidates know at that time as to for which of the subjects and in what number the said posts were reserved. The result was that the candidates belonging to the reserved category in particular, who wanted to apply for the reserved posts did not know for which of the posts they could apply and whether they could apply at all for the posts in the subjects in which they were qualified. What is further, the selection committees which were appointed to interview the candidates for the respective posts did not also know whether they were interviewing the candidates for reserved posts or not, and to assess merits of the candidates. The contention advanced on behalf RMA wp8190­09.sxw 18 of the appellants that the selection committees even without knowing whether the posts concerned were reserved or not, had given weightage to the candidates from the reserved category and, therefore, it cannot be said that any injustice had resulted to them is without merit.' All these observations were made in view of the fact that the advertisement was for post of reserved as well as open category and it was held that the advertisement was bad. However, in the present case, from the first advertisement, it is seen that the posts were only for reserved candidates. Admittedly, the petitioner is from open category and therefore, he could not make any grievance as far as this advertisement is concerned. As far as the appointment of the petitioner in the second school is concerned, the petitioner has relied on one advertisement. The said advertisement is purportedly in the year 1990. However, it is not known whether the petitioner was appointed in the year 1992 in respect of the post mentioned in this advertisement. Moreover, in the present case, the petitioner was not interviewed for the post along with other candidates either from open category or reserved category, in such case the ratio cannot apply to the case of the petitioner. In any RMA wp8190­09.sxw 19 event, it may be noted that in the decision relied upon, the Supreme Court held that the advertisement of employment notice was bad in law as it had failed to notify the reservations of the posts subject wise and had mentioned only the total number of reserved posts without indicating the particular posts so reserved subjectwise, yet the Supreme Court did not interfere with the order of termination. The facts in the decision relied upon and the facts in the present case being entirely different, the said decision would be of no avail to the petitioner. 15.The Tribunal has carefully considered all the material on record and has thereafter dismissed the appeal. In my opinion, no interference is called for. Petition is dismissed. 16.At this stage, the learned counsel for the petitioner made an oral prayer for stay of this order. Request is rejected. (SMT. V.K. TAHILRAMANI, J) RMA wp8190­09.sxw 20 RMA wp8190­09.sxw