1 wp 6045.03.doc K IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6045 OF 2003 Shrirang Dattatraya Bote Barge Mala, Chandur Road, Ichalkaranji, District Kolhapur. ..Petitioner. Vs. 1 The Chairman, Ichalkarangi Education Society, Ichalkaranji, District Kolhapur 2 The Head Master, Venkatrao High School, Ichalkaranji, District Kolhapur. 3 Education Officer (Secondary) Zilla Parishad, Kolhapur. ..Respondents. Mr. M.S.Topkar for petitioner. Mr. N.V.Bandiwadekar for respondent no.1 and 2. Mr. S.N.Bhosale, AGP for respondent no.3. CORAM : K.K.TATED, J. Reserved on : 07.04.2011 Pronounced on : 21.04.2011. JUDGMENT: 1 Heard learned counsel for the parties. 2 By this petition under Articles 226 and 227 of the Constitution of India, Petitioner is challenging the order dated 2 wp 6045.03.doc 24th April, 2003 passed by the learned Presiding Officer, School Tribunal, Kolhapur Region, Kohapur, in Appeal No. 100 of 2002 preferred by Petitioner-Original Appellant challenging the termination order dated 18th July, 2002. The Tribunal dismissed Petitioner’s Appeal on the ground that respondent nos.1 and 2 failed to clear the back log as per rule 9 (7) of the Maharashtra Employees of Private Schools Rules, 1981 (hereinafter referred to as ‘the Rules’) i.e. 52% of the total number of posts of the teaching and non-teaching staff for the persons belonging to Scheduled Castes and Scheduled Tribes, Denotified Tribes (Vimukta Jati), Nomadic Tribes, Special Backward Category and Other Backward Classes. 3 A few facts of the matter are as under: Respondent no.1 Ichalkaranji Education Society, Ichalkaranji, District Kolhapur has issued a public advertisement in daily news paper inviting applications from the candidates eligible for appointment as Peon in respondent no.2-Venkatrao High School, Ichalkaranji, District Kolhapur. It was notified in the said advertisement that the said post was for open candidates and candidates should apply till 9th December, 2000. Pursuant to the said advertisement, the petitioner applied for 3 wp 6045.03.doc the post of Peon in the respondent-school in open category, as he was eligible for the said post. Considering the petitioner’s application, respondent no.2 issued appointment letter dated 5th January, 2001 under Rule 9 (5) of the said Rules. It was stated in the said appointment order that he can join with effect from 8th January, 2001. The said appointment was on a clear vacant post which was not reserved for backward class. Thereafter, the petitioner’s appointment was approved by respondent no.3 i.e. Education Officer (Secondary), Zilla Parishad, Kolhapur vide its order dated 20th February, 2001. The Petitioner worked with respondent no.2 for sometime. However, his services were terminated by respondent nos. 1 and 2, by their order dated 18th July, 2002. In the said termination letter dated 18th July, 2002, respondent no.1 stated that respondent no.3 by their letter dated 4th May, 2002 revoked the sanction and therefore, they were constrained to issue the said termination letter. 4 Being aggrieved by the termination letter dated 18th July, 2002, Petitioner preferred Appeal No.100 of 2002 before the School Tribunal, Kolhapur Region, Kolhapur, under section 9(1) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter referred to as ‘the Act’). In the said Appeal, the Petitioner submitted that the 4 wp 6045.03.doc Petitioner was qualified for the post and hence respondent nos.1 and 2 had appointed on probation which was legal and proper. In such circumstances, the illegal order of termination was issued at the time of completion of two years of probation with malafide intention without just cause. He further submitted that as respondent nos.1 and 2 rightly appointed him on a vacant post and as he had completed 18 months service uninturruptly and continuously, it was necessary that he should be deemed to be permanent employee under section 5 (2) of the said Act and it is necessary to protect his employment and service conditions as permanent employee. He further challenged the order passed by respondent no.3, dated 4th May, 2002 canceling his approval with retrospective effect without giving any show cause notice and/or hearing. 5 In the said Appeal, respondent no.1 and 2 filed their written statement, dated 23rd September, 2002 and opposed the said Appeal on several grounds including that the Petitioner was on probation and on the date of his termination he had not completed the probation period of two years. Hence, there was no question of deemed confirmation under section 5 (2) of the said Act. The Petitioner was not entitled to be confirmed in the said post before completion of the probation period. Respondent 5 wp 6045.03.doc nos.1 and 2 specifically stated in the written statement that while giving the appointment order to the Petitioner, it was specifically mentioned in the appointment order that the said appointment was subject to the approval of respondent no.3 and accordingly, respondent no.3 had given the approval vide letter dated 20th February, 2001 for the period of probation. But subsequently, respondent no.3 by their letter, dated 11th June, 2002 communicated that the said approval was the subject matter of Government Resolution dated 4th May, 2002 and hence, the approval given by them was withdrawn. Therefore, respondent nos. 1 and 2 had no alternative than to terminate petitioner’s service. 6 Respondent no.3 though duly served by the Tribunal, failed to file their appearance as well as written statement. 7 The Tribunal by its order dated 24th April, 2003 held that Respondent nos.1 and 2 failed to fill in the back log as required under Rule 9(7) of the said Rules and therefore, the termination letter issued by respondent-school was according to law. The Tribunal categorically held that the respondent-management had to maintain ratio of 52% in respect of reserved category candidates and 48% in respect of open category candidates and 6 wp 6045.03.doc as the same was not maintained by the respondent- management, the appointment of the petitioner was against rules and regulations and therefore, the Tribunal upheld the termination order issued by respondent nos.1 and 2. 8 Being aggrieved by the said order dated 24th April, 2003 passed by the learned Presiding Officer, School Tribunal Kolhapur Region, Kolhapur in Appeal No.100 of 2002, the Petitioner is challenging the same by this petition on several grounds. The learned counsel appearing on behalf of Petitioner submits that the Tribunal erred in holding that the Petitioner was appointed against the reserved candidate post. The Hon’ble Tribunal mis-read Government Resolution as well as the roster filed by respondent nos. 1 and 2. He submits that the Hon’ble Tribunal failed to appreciate that at no point of time there can be more than 50% posts occupied by the backward class candidates. He further submitted that the Petitioner was appointed on 5th July, 2001 and at that time, unamended Rule 9 (7) provided only 34% of the total number of posts to the reserved category candidates. These facts were not considered by the Tribunal. He submits that Tribunal has taken into consideration the amended provisions of Rule 9 (7) of the said Rules. He submits that Rule 9 (7) of the said Rules was amended 7 wp 6045.03.doc with effect from 8th July, 2008 and therefore, the same was not applicable at the relevant time. 9 The learned counsel appearing on behalf of Petitioner further submits that respondent nos. 1 and 2 issued advertisement in which it was specifically stated that the vacancy was from open category. He further submitted that the Tribunal relied on Government Resolution Issued by State Government of Maharashtra from time to time for maintaining roster to the extent of 52% for the candidates belonging to reserved category. He submits that those Government Resolutions were contrary to the unamended Rules 9(7) of the said Rules. 10 On this point he relies on unreported judgment in the matter of Nishad Sadashiv Pawar & others vs. Dnyanasadhana College and others in Writ Petition No.3680 of 2004, dated 25th February, 2005 (Coram: F.I.Rebello & S.P.Kukday, JJ. as the then). In that judgment the Division Bench of this Court specifically held that Government Resolution issued by the State Government from time to time in exercise of its administrative power under Articles 162 of the Constitution of India would be inapplicable to 8 wp 6045.03.doc the appointments in Schools and Junior Colleges unless and until same is in accordance with the Act and the Rules. Paragraph no.4 of that judgment reads as under: “4. The authorities under the M.E.P.S. Act to follow strictly Rule 9 (7) of M.E.P.S. Rules in so far as recruitment to the posts governed by the M.E.P.S. Act and Rules. The G.Rs as issued by the Government from time to time in the exercise of its administrative powers under Article 162 of the Constitution of India would be inapplicable to appointments in schools and junior colleges. Consequently, if the contentions raised in ground (c) are considered, the Petitioners are right and the Petitioners can be posted against the posts presently held by them. Considering that and as the issue has not been answered, petition will have to be partly allowed.” 11 He further submits that in view of Full Bench Judgment of this Court in the matter of St. Ulai High School and another vs. Devendraprasad Jagannath Singh and another, reported in 2007(1) Mh.L.J. 597, respondent nos. 1 and 2 could not impose condition of approval by the respondent no.3 in the appointment letter. He relies on paragraph 10.8 of that judgment which reads as under: 9 wp 6045.03.doc “10.8 The question that arises is whether a condition of approval can be imposed by the management in the order of appointment and if so whether a termination of services can be sustained on the ground that there has been a non- fulfilment of a contractual condition contained in the order of appointment. The answer is that the terms and conditions of appointment are prescribed in the rules framed under sub-section (1) of section 4. Rule 9 (5) provides that a candidate appointed to a post has to be issued with a letter of appointment in accordance with the form prescribed in Schedule D. Schedule D, does not impose any condition providing for prior or post facto approval as a condition for continued employment. An order of appointment cannot be at variance with the conditions prescribed in the rules which have statutory force and effect in conjunction with section 4(1) of the Act. The mode of appointment and conditions of service of employees of recognised private schools are statutorily prescribed by the Act and the rules and it would, therefore, not be open to the management to impose a condition that the validity of the appointment would be subject to the grant of approval. The State Government as a delegate of the Legislature has not prescribed any such condition in the rules and the management cannot impose such a condition which has not been 10 wp 6045.03.doc provided in the rules, as an overriding pre- requisite to the validity of an appointment.” 12 On the other hand, the learned counsel appearing on behalf of respondent nos. 1 and 2 justified the order passed by the Tribunal. He submits that it was specifically stated in the appointment letter that petitioner’s appointment will be subject to the approval of respondent no.3 and as respondent no.3 subsequently revoked petitioner’s approval, they were constrained to issue termination order. He further submits that initially the Petitioner was appointed on probation for two years. But before completing the probation period, they terminated his services as the approval was withdrawn by the respondent no.3. He submits that as termination order was issued before completion of two years service by the Petitioner, he cannot claim deemed confirmation under section 5(2) of the said Act. 13 The learned AGP appearing on behalf of respondent no.3 submits that as written statement could not be filled by the respondent no.3 before the Tribunal, in the interest of justice, matter may be remanded back to the Tribunal with liberty to them to file their written statement, as in case the present petition is allowed they may have to bear financial burden for payment of the wages, if this court so directs. 11 wp 6045.03.doc 14 On bare reading of the impugned order, dated 24th April, 2003 passed by the School Tribunal, Kolhapur, it is clear that the Tribunal relied on amended Rule 9 (7) of the said Rules, while holding that respondent nos. 1 and 2 failed to maintain the back log i.e. reservation up to 52% for the reserved category candidates. It is to be noted that the petitioner was appointed by letter dated 5th January, 2001 and at that time, the unamended Rule 9 (7) was in enforce which reads thus: “(7) The Management shall reserve 34 per cent of the total number of posts of the teaching as well as non-teaching staff for the members of the Scheduled Castes, Scheduled Castes converts to Buddhism, Scheduled Tribes, Denotified Tribes, Nomadic Tribes and Other Backward Classes as follows, namely: (a) Scheduled Castes and Scheduled Castes converts to Buddhism. 13% (b) Scheduled Tribes including those living outside the specified areas. 7% (c) Denotified Tribes and Nomadic Tribes. 4% (d) Other Backward Classes. 10%” 12 wp 6045.03.doc 15 At the relevant time, the reservation was only 34% for the reserved category candidates, as held by this Court in the matter of Nishad Sadashiv Pawar & others (supra) in Writ Petition No.3680 of 2004, Government Resolutions cannot overrule, the rules framed under the said Act. Therefore, the Tribunal erred in coming to the conclusion that respondent nos.1 and 2 failed to clear the back log up to 52% for the reserved category candidates and therefore, the appointment of the Petitioner was illegal. It is to be noted that this issue was neither raised by the Petitioner in his Appeal Memo nor raised by respondent nos.1 and 2 in their written statement. Respondent nos. 1 and 2 in their written statement specifically stated that as respondent no.3 revoked the approval, they issued termination order to the Petitioner. 16 It may also be mentioned that the condition of approval from respondent no.3 in the appointment letter issued to the Petitioner was not in accordance with the Recruitment Rules. It is well settled law, as per Full Bench Judgment of this Court in the matter of St. Ulai High School and another (supra) that management cannot issue appointment letter putting the condition of subject to approval from the authority, because the approval is only for getting the grant from the Government. 13 wp 6045.03.doc Therefore, the contentions raised by the learned counsel appearing on behalf of respondent nos.1 and 2 cannot be sustained in view of the Full Bench Judgment of this Court. 17 As the Tribunal proceeded on the basis of amended provisions of Rule 9 (7) of the Act, and failed to consider legality of order dated 4th May, 2002 passed by respondent no.3 withdrawing the approval, which was not in accordance with the unamended Rules prevailing when the order of appointment of the Petitioner was passed by the respondent nos. 1 and 2, the order of the Tribunal dismissing the Appeal cannot be sustained. 18 The impugned judgment and order dated 24th April, 2003 passed by the learned Presiding Officer, School Tribunal, Kolhapur Region, Kolhapur in Appeal No.100 of 2002 can not be sustained and it is set aside. Matter is remanded to the Tribunal with liberty to respondent nos. 1 and 2 as well as respondent no.3 to file their written statement/additional written statement. Considering the fact that the Petitioner is out of job for more than last nine years, it is expedient, in the interest of justice to direct Tribunal to decide the appeal as early as possible but in any case within six months from the 14 wp 6045.03.doc receipt of writ from this Court. Therefore, Tribunal is directed to allow the respondents to file written statement/additional written statement if they so desire and decide the Appeal No. 100 of 2002 as early as possible but in any case, within six months from the receipt of writ from this court. 19 Accordingly writ petition is partly allowed with no order as to costs. sd/- (K.K.Tated, J.)