1 aswp-3799-96 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3799 OF 1996 Shri Umesh Shivaji Mule Assistant Teacher, Post Basic Ashram Prashala, Vairag, Taluka Barsi, District – Solapur. .. Petitioner Versus 1. Project Officer, Integrated Tribal Development Project, Ghadegaon, District – Pune. 2. Suresh Ramchandra Gaikwad The General Secretary, Bal Sanskar Kendra, Lamboti, Taluka Mohol, District – Solapur. 3. The Headmaster, Post Basic Ashram Prashala, Vairag, Taluka Barsi, District – Solapur. 4. The State of Maharashtra .. Respondents None for the petitioner. None for the respondents. CORAM: B. H. MARLAPALLE & SMT. NISHITA MHATRE JJ. SEPTEMBER 06, 2011. 2 aswp-3799-96 ORAL JUDGMENT (Per B. H. Marlapalle,J.): 1. The petitioner was appointed as Assistant Teacher in response to his application dated 23/7/1992 by the respondent no.2 and for respondent no.3 – school. This appointment was purely on temporary basis and effective from 11/8/1992 till the end of academic year. By a communication dated 29/3/1993 he was informed that he was relieved from service on 30/4/1993. On 7/6/1993 he was issued a fresh appointment order for the academic year 1993-94 and again on 28/3/1994 he was served with a relieving letter at the end of the academic year. He was issued third appointment order on 7/6/1994 and purely on temporary basis for the academic year 1994-95 and this appointment was effective from 14/6/1994. In the like manner, he was issued fourth appointment order on 10/6/1995 for the academic year 1995-96 and effective from 10/6/1995. In all these appointment orders, it was specifically mentioned that the said appointment was against a post reserved for the scheduled tribe and in the event of non approval of his appointment by the Education Officer, the appointment order would stand withdrawn. When he was relieved in the month of April, 1996, the petitioner approached this court on or about 17/7/1996 and 3 aswp-3799-96 prayed for directions to hold that he is a confirmed Assistant Teacher. He further prayed for directions to the Education Officer to grant approval on permanent basis for his appointment as an Assistant Teacher. The petition was also allowed to be amended and when it was admitted, the prayer for interim relief was specifically rejected as per the order dated 31/10/1996. Thus the petitioner was not in the employment of respondent no.2 as an Assistant Teacher at any point of time from April, 1996 onwards. 2. Affidavit-in-reply has been filed by the headmaster of respondent no.3-School and the approval orders passed by the Education Officer for the academic years 1992-93 and 1993-94 have been placed on record and it is evident from the same that the petitioner’s appointment was approved on year to year basis because he was appointed against a post reserved for scheduled tribe to which he did not belong. The petitioner is an open category candidate. Even in the year 1994-95 his appointment was approved on temporary basis and against a post reserved for scheduled tribe. The affidavit further states that for every academic year there was an advertisement released to fill in the backlog of reserved category teachers and as the candidates belonging to scheduled tribe were not available, the petitioner’s application was entertained and he was appointed on year to 4 aswp-3799-96 year basis. 3. Thus, the petitioner was never appointed as a regular Assistant Teacher against a seat belonging to open category and the relief prayed for in this petition cannot be granted when his appointment was against a post reserved for scheduled tribe, it was approved on year to year basis and when he approached this court, he was not in service. He had the remedy of filing an appeal before the School Tribunal challenging the purported illegal termination of service and he did not do so. Instead, he filed this petition praying for a writ to treat him as a confirmed Assistant Teacher, while he was not in service as an Assistant Teacher. It was necessary for the petitioner to file an appeal before the School Tribunal and in case he had succeeded in the same, he could have claimed the relief for confirmation of service. 4. In the premises, this petition must fail and the same is hereby dismissed. Rule is discharged, but without any order as to costs. (SMT. NISHITA MHATRE J.) (B. H. MARLAPALLE, J.)