Lsp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO.4026 of 1998 Shri Prakash Shivraj Dalvi ..Petitioner v/s. State of Maharashtra & ors. ..Respondents Mr.A.M.Joshi, Advocate for the Petitioner Mr.A.P.Vanarase, AGP for Respondent Nos. 1 & 2. Mr.I.A.Saiyed, Advocate for Respondent Nos. 3 & CORAM CORAM CORAM : B.H.MARLAPALLE,J. : B.H.MARLAPALLE,J. : B.H.MARLAPALLE,J. DATED DATED DATED : 28th February , 2008 : 28th February , 2008 : 28th February , 2008 ORAL ORAL ORAL JUDGEMENT JUDGEMENT JUDGEMENT This petition arises from the Judgement and order dated 26-11-1997 rendered by the School Tribunal at Kolhapur in Appeal No. 164/1996 filed by the petitioner whereby the appeal came to be dismissed. The factual matrix which is not in dispute and relevant to decide this petition would be stated as under, . The Petitioner who had his M.Sc. (Mathematics) qualifications, obtained B.Ed. degree in the year 1992. On 4-5-1995 Respondent No.3 & 4 released an advertisement and published in the local newspaper to fill in the post of Assistant Teacher in D.B.J. Junior College at Chiplun for the academic year 1995-96 and as per the said advertisement, full time lecturers in 2 Mathematics, Marathi and Psychology were to be appointed whereas in English and Sanskrit a part time lecturer was to be appointed and in Geography a lecturer on C.H.B. (clock hour basis) was to be appointed in the Senior Section. The Petitioner responded to the said advertisement by submitting his application and he was called for interview on 8-6-1995. On 5-7-1995 he came to be appointed as a lecturer in Mathematics. However, on 14-3-1996 he was issued a notice informing him that his tenure would come to an end on 20-4-1996. On 9-5-1996 the Respondent Nos. 3 & 4 released a fresh advertisement which was published in one of the local newspaper by name "Pudhari" to fill in posts of lecturers in 7 different subjects on full time basis and Mathematics was one of them for the academic year 1996-97. The Petitioner submitted his application and was interviewed on 16-6-1996 but he was not selected and instead one Mr. S.V.Dandekar was appointed. 2. Having realised that his claim was not considered for the post of lecturer in Mathematics for the academic year 1996-97, the Petitioner approached the School Tribunal in Appeal No. 164/96 and contended that when he joined on 5-7-1995 there was no appointment order issued to him, he was an open category candidate and the post of lecturer in Mathematics was not a reserved post. He met the requirements of qualifications for the said 3 post and, therefore, he was deemed to have been appointed on probation within the meaning of Section 5 of the MEPS Act, 1977 (the Act for short). In short in the Appeal he challenged the notice dated 14-3-96 and his disengagement from 21-4-96 as a lecturer in Mathematics in the junior college and prayed for reinstatement in service with backwages and all consequential benefits on the ground that the said notice was illegal. 3. The management i.e. present Respondent Nos. 3 & 4 filed their written-statement before the School Tribunal on or about 28-11-1996 and submitted while opposing the appeal, that the appellant was issued an appointment order dated 5-7-1995. The post on which he was appointed was a reserved post for Scheduled Tribe. On 12-7-95 the appellant submitted the application acknowledging the fact that he was appointed against the reserved post for Scheduled Tribe and he would have no grievance for such an appointment. The appointment order clearly stated that it was for a specific period upto 20-4-1996 and on temporary basis, the appointment of the appellant was made against the vacancy caused due to the removal of the earlier lecturer by name Mr.Kashid who had filed an Appeal before the School Tribunal. The management further contended that the appellant had accepted the termination notice dated 14-3-1996 and when 4 a fresh advertisement was released on 9-5-96, he had submitted his application in response thereto. He was interviewed on 16-6-96 but was not appointed as a better candidate than him by name Mr. Dandekar who came from the open category was appointed on temporary basis for the academic year 1996-97. It was further submitted by the management that the appointment of the appellant for the year 1995-96 as well as the appointment of Mr.Dandekar for the next academic year was not approved by the Dy. Director of Education and the management could not bear the salary burden of both these teachers during the respective academic years. The management, therefore, opposed the maintainability of the Appeal under Section 9 of the Act on the ground that it was filed only because the appellant was not selected in the academic year 1996-97. The management also brought on record all the documents like the appointment order dated 5-7-95, the undertaking furnished by the appellant on 12-7-1995, copies of the advertisements released on 4-5-95 as well as on 9-5-1996 and the orders received from the Dy. Director of Education regarding rejection of approval in the appointment of appellant as well as Shri Dandekar. The appellant submitted his written arguments on or about 18-7-97 and by then Mr.Dandekar was also not in service and he also pointed out that the Appeal filed by Mr. Kashid was dismissed by the School Tribunal. He stated in the written arguments that in 5 case the Appeal filed by Mr.Kashid was allowed then only his discontinuation or non-appointment in the academic year 1996-97 would have been justified. The School Tribunal considered the rival arguments as well as the documents placed on record and held that the post of lecturer in the first academic year as well as in the 2nd academic year was reserved for Scheduled Tribe and the appointments made in both these academic years were on temporary basis as appointees were from open category. The appellant was aware that he was a temporary appointee and he had furnished an undertaking to that effect. He could not be treated to have been appointed on probation within the meaning of Section 5 of the Act and he could have no claim to be continued in the post of lecturer after the academic year 1995-96. Consequently, the Appeal was dismissed. The School Tribunal also noted that the appellant not being a candidate from any of the reserved category, he could not have relied upon the provisions of Rule 9 (9)(a) of the Rules. 4. The Assistant Director of Education from the office of the Dy. Director of Education, Kolhapur has filed an affidavit in reply and has pointed out that the Petitioner was subsequently appointed as an Assistant Teacher in Paisa Fund English School in Sangamner, Tal. Sangamner, Dist. Ratnagiri since the year 1998 and this 6 position is not disputed by the learned counsel for the Petitioner. The affidavit further states that the post of lecturer in Mathametics in both the academic years was reserved for Scheduled Tribe as was contended by the management and the approval for the appointment of the appellant for the academic year 1995-96 was granted only on temporary basis and for that academic year. The appellant had accepted the appointment for the academic year with his eyes open and he was fully aware that the said appointment was against the post reserved for Scheduled Tribe. 5. The first advertisement dated 4-5-1995, as noted earlier, was for full time, two part time posts and one post of lecturer on C.H.B. It clearly stated that two posts were reserved for Scheduled Tribe and in law such a statement will be applicable only for the full time posts and no reservation would be made applicable to the part time posts as per the Scheme of Rule 7 and 9 of the Rules. The contentions of the Petitioner that he was appointed on probation or he was deemed to have been appointed on probation were fallacious and this claim was made by suppressing the appointment order dated 5-7-1995 as well as the undertaking dated 12-7-1995 which documents were placed before the School Tribunal by the management. The Tribunal did not commit any error in holding that the appellant was a temporary 7 appointee for a specific period and against the reserved post for Scheduled Tribe. In such a situation the appellant could not claim that he ought to have been treated to have been appointed on probation and he was entitled to be continued in the academic year 1996-97. Infact when the Petitioner submitted his application in response to 2nd advertisement dated 9-5-1996, it was a clear indication that he had accepted the termination notice dated 14-3-1996 as legal and the contentions raised by the management that the Appeal was not maintainable could not be brushed aside. It was evident that only when he was not selected for the academic year 1996-97, he filed the Appeal before the School Tribunal and thus the cause of action to file the Appeal was only on account of the said non-selection which could not fall within the ambit of Section 9 of the Act. The Appeal was thus by way of an after thought. 6. The record further reveals that even in the next academic year the post of lecturer in Mathematics was shown to be reserved for Scheduled Tribe and this has been supported by the affidavit in reply filed on behalf of Dy. Director of Education. If the appellant was one of the candidates from any reserved category, he would have been justified in contending that in the very first academic year 1995-96 itself, he ought to have been appointed on probation but such is not the case 8 admittedly and even Mr.Dandekar was not a candidate from any reserved category. He had accepted the appointment on temporary basis in the academic year 1995-96, it was not permissible to the Petitioner to approach the School Tribunal after he realised that in the next academic year inspite of having gone through the selection process he was not selected and appointed. The School Tribunal has rightly relied upon the decision of this Court in the case of Mathuradas Mehta College of Mathuradas Mehta College of Mathuradas Mehta College of Science, Science, Science, Nagpur V/s. R.T.Borkar & ors. (CLR II 1997 Nagpur V/s. R.T.Borkar & ors. (CLR II 1997 Nagpur V/s. R.T.Borkar & ors. (CLR II 1997 1060). 1060). 1060). Hence, the challenge raised in this petition against the impugned Judgement and order is devoid of merits and the petition must fail. 7. In the premises, the petition is hereby dismissed. Rule discharged but without any order as to costs. [B.H.MARLAPALLE,J.] [B.H.MARLAPALLE,J.] [B.H.MARLAPALLE,J.]