1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.366 OF 2008 Govind Maruti Todkar ..Petitioner. Vs. State of Maharashtra and others ..Respondents. .... Mr. S.S. Pakale for the Petitioner. Mr. S.N. Patil, AGP for Respondents 1 and 2. Mr. N.V. Bandiwdekar for Respondent Nos.3 to 5. .... CORAM: DR. D.Y. CHANDRACHUD, J. 7th April, 2008. P.C. : 1. The Petitioner was appointed as an Assistant Teacher on 1st June, 1992 initially for a period of one year. The finding of the Tribunal is that as a matter of fact, no advertisement was issued when the appointment was made. The services of the Petitioner were terminated on 29th March, 1993. On 24th May, 1993 an advertisement was issued by the management under which the post was reserved for the Scheduled Tribes. In June 1993 an order of appointment was issued to the Petitioner against an S.T. post. The Petitioner accepted the appointment against a reserved vacancy. On 21st March, 1994 the Education Officer had 2 treated the appointment of the Petitioner also as against the reserved vacancy. The Petitioner belongs to the open category. On 7th June, 1994 the Petitioner was once again appointed for the period ending 24th April, 1995 against a vacancy reserved for the Scheduled Tribes. The Tribunal has found that the appointments that were issued to the Petitioner were on a temporary basis for a duration of one year since the post was reserved for the Scheduled Tribes. The management successively issued orders of termination upon the expiry of the terms of appointment. These reasons have weighed with the Tribunal in dismissing the appeal of the Petitioner against the termination of his services. 2. During the pendency of the appeal before the School Tribunal, the Petitioner was reinstated in service by an interim order. On 18th December, 2007 a purshis was placed on the record of the Tribunal by the Petitioner and by the Respondent management recording that the Petitioner was in service from 6th August, 1992; that there were no arrears payable to the Petitioner from the date of the original appointment and that the Education Officer having given his approval to the appointment of the Respondent, the management was willing to absorb the Petitioner 3 in service. It appears from the record which has been produced before this Court more particularly all the approvals granted by the Education Officer that these approvals were conditional and subject to the decision of the School Tribunal. 3. On behalf of the Petitioner it has been submitted that his appointment was a regular appointment and not against a reserved port. It has been submitted that nothing was mentioned about the reservation of the post in the first order of appointment and that the management failed to produce the roster of reservations before the School Tribunal. In these circumstances, it has been urged that an adverse inference should have been drawn against the management. While considering the aforesaid submissions, it would have to be noted on the state of the record as it stands that the initial appointment on 1st June, 1992 for a period of one year was not preceded by a regular process of selection and no advertisement was issued. The advertisement which was issued in May 1993 was for a reserved post and the appointment of the Petitioner in June 1993 was against a reserved post. On 21st March, 1994 the Education Officer had treated the appointment of the Petitioner as such. In these circumstances, the Tribunal 4 cannot, on the state of the record as it stands, be held to be in error in coming to the conclusion that the Petitioner had no vested right to the post since his appointment by its very nature was temporary; the post was reserved for the Scheduled Tribes; the appointment was made against a reserved vacancy and the Petitioner had accepted his appointment as such. This is not a case where the management had not produced relevant documentary material since the list of documents produced before the Tribunal is comprehensive enough to indicate that relevant documentary material was produced before the Tribunal. In these circumstances, the order passed by the Tribunal does not warrant any interference. However, the fact remains that the Petitioner has continued in service for nearly 16 years; part of the period being as a result of the interim order passed by the Tribunal on 6th October, 1997. At this stage, the management has not opposed the suggestion of the Court that while it would be open to it to advertise the post against a reserved vacancy, the services of the Petitioner may be continued in the interregnum until a reserved candidate is made available. In the circumstances, it will be open to the management to submit a proposal for a fresh appointment against a reserved vacancy to the Education Officer who, while 5 dealing with such proposal shall examine the roster position and subject to due verification deal with the application in accordance with law. Until a suitable reserved category candidate is available from the category for which the post is reserved, or otherwise in accordance with Rule 9(9)(a) of the Maharashtra Employees of Private Schools Rules 1981 which permits interchangeability as between different reserved categories, the management shall continue the services of the Petitioner in a temporary capacity. The continuation of the services of the Petitioner in a temporary capacity shall, however, not create any right or equity and the services have necessarily to be brought to an end once a reserved category candidate is made available. The Petition is disposed of in these terms. No costs. *****