- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.958 OF 2003 IN WRIT PETITION NO.210 OF 2003 Shri Anand Gunga Patil, ) 714/26, Dagadi Chawl, ) R.J.Marg, Byculla, ) Mumbai - 400 011. ) .. Appellant (Org.Petitioner) Versus 1. The President, ) Nagrik Sahayya Kendra, ) Rafi Ahmed Kidwai Marg, ) Wadala, Mumbai - 400 031. ) 2. The Headmistress, ) Dnyaneshwar Vidyalaya, ) Rafi Ahmed Kidwai Marg, ) Wadala, Mumbai - 400 031. ) 3. The Education Officer, ) Greater Mumbai, ) North Division, 59, ) New Administrative Bldg. ) No.2, 2nd Floor, ) R.C.marg, Chembur (E), ) Mumbai - 400 071. ) 4. State of Maharashtra, ) Through the Dept.of Education) & Employment, Mantralaya, ) Annexe, Mumbai - 400 032. ).. Respondents -- Shri Mihir Desai for the Appellant. Ms Anupama Shah for the Respondent Nos.1 and 2. Shri M.P.Naik, AGP for the Respondent Nos.3 and 4. -- - 2 - CORAM : SRI R.M.S.KHANDEPARKAR & SRI P.B.MAJMUDAR, JJ DATED : 5TH MAY, 2008 ORAL JUDGMENT : ( PER P.B.MAJMUDAR, J ) ORAL JUDGMENT : ( PER P.B.MAJMUDAR, J ) ORAL JUDGMENT : ( PER P.B.MAJMUDAR, J ) 1. By filing this appeal, the appellant has challenged the order of the learned Single Judge dated 27th March, 2003 passed in Writ Petition No.210 of 2003 by which the learned Single Judge has dismissed the writ petition filed by the appellant and confirmed the order passed by the School Tribunal, Mumbai. The appellant was appointed on a permanent vacant post of Assistant Teacher since 1996-97 to 2000-01 for a period of five years. It is the case of the appellant that he was appointed on a permanent and vacant post of Assistant Teacher after following due procedure at the time of his appointment. It is also his case that he had completed the probation period of three years successfully and, therefore, he is deemed permanent employee as per Section 5(2) of the Maharashtra Employees of Private Schools Act, 1977. The services of the appellant were terminated and again continued from time to time since last five years. It is also his case that he was given to understand that he would - 3 - be continued on temporary basis from year to year and, therefore, he had not approached the School Tribunal in time. Ultimately, since his services were not continued after the year 2000-01, he challenged the said action of termination before the School Tribunal, Mumbai. The challenge before the Tribunal was in relation to the termination order dated 30th March, 2001. 2. The Respondent Nos.1 and 2 herein resisted the claim of the appellant by filing written statement. The allegation levelled by the appellant/teacher was denied in the written statement. It is the case of the Respondent Nos.1 and 2 that the appellant was appointed on temporary basis and his appointment was continued on year to year basis. It was their further case that the appellant was appointed on the reserved vacancy. It is also their case that since there was no candidate available from the reserved category, the appointment was given to the appellant on temporary basis on the post which was meant for reserved category. On this and such other grounds, the application was opposed by the Management. 3. The Tribunal, after considering the evidence on record, came to the conclusion that the appellant - 4 - was appointed on a temporary basis on the post meant for reserved category. The Tribunal also came to the conclusion that it can be said that the termination dated 30th March, 2001 was issued by the respondent Nos.1 and 2 terminating the services of the appellant from 30th April, 2001, as per the provisions of the Act and the Rules. The undertakings given by the appellant from time to time go to show that the appellant was appointed on a reserved post on year to year basis by giving an undertaking that he will not claim any right to the post of Assistant Teacher, and on that count, the Tribunal considered his last appointment order for the academic year 2000-2001. The Tribunal accordingly reached the conclusion that the appellant has failed to establish that he is a permanent teacher and that his appointment was made on permanent basis as per the provision under Section 5(2) of the said Act. It is found that the termination was in accordance with the law and the rules. The Tribunal accordingly dismissed the appeal by its order dated 30th October, 2002. The aforesaid order of the Tribunal was challenged by way of Writ Petition No.210 of 2003 before this Court. 4. The learned Single Judge came to the conclusion that since the appointment of the appellant - 5 - was on the reserved vacancy, he is not entitled to continue in the service. The learned Single Judge has also found that the appellant has no right to hold the said post. It has been found by the learned Single Judge that the appellant was appointed against the reserved post and had given an undertaking that he would not question his appointment and that it is too late at this stage to suggest that the appointment was not correct or that the appellant had no option but to give such undertaking. The learned Single Judge accordingly dismissed the writ petition which order is impugned at the instance of the appellant in this appeal. 5. The learned advocate for the appellant has submitted that the appellant was appointed after following due procedure of law and the appointment of the appellant was on the clear vacancy. It is submitted that the appellant was appointed on the clear vacancy by way of temporary appointment. It is submitted that even the approval was granted by the department to the appointment of the appellant. It is submitted that the Tribunal has not considered the claim of the appellant in its proper perspective and has not given the finding whether, in substance, the appellant was appointed on a clear vacancy or that he - 6 - was appointed on a reserved post. It is submitted that roster point was also not properly considered by the Tribunal. 6. The learned counsel for the appellant has relied upon a decision of this Court rendered by one of us ( R.M.S.Khandeparkar, J ) in President, Mahila President, Mahila President, Mahila Mandal, Sinnar & Anr. v. Sunita Bansidhar Patole, Mandal, Sinnar & Anr. v. Sunita Bansidhar Patole, Mandal, Sinnar & Anr. v. Sunita Bansidhar Patole, reported in 2007(2) Mh.L.J. 105. In the aforesaid judgment, this Court has held that once it is clear that the post wherein the appointment was made was a permanent vacancy, unless it is specifically disclosed by the roster that the same was meant to be filled in by appointment of a reserved category candidate, the provisions of Section 5(1) of the MEPS Act are clearly attracted. In the said matter, it has been observed in paragraph 14 as under:- "Once it is clear that the post wherein the respondent was appointed was a permanent vacancy, unless it is specifically disclosed by the roster that the same was meant to be filled in by appointment of a reserved category candidate, the provisions of Section 5(1) of the MEPS Act are clearly attracted. In the case in hand, it is not in dispute that - 7 - the post which was occupied by the respondent was a permanent vacancy. The contention that it was for reserved category candidate is already found to be devoid of substance. Obviously, when the respondent was duly selected and appointed by issuing appropriate order of appointment on 1st July, 1988, the same was to be considered as in terms of the provisions of law comprised under Section 5(1). Once there is an appointment in accordance with the provisions of law comprised under Section 5(1) and the candidate so appointed completes period of two years in service, the provisions of Section 5(2) are naturally attracted." 7. The learned counsel for the respondents, on the other hand, has submitted that the appointment of the appellant was not as per the rules and in that view of the matter, the appellant is not entitled to get any relief. It is submitted that since the appointment is made on the reserved vacancy, the appellant is not entitled to get any relief and is not entitled to continue on the said post as the appointment cannot be said to be in accordance with the law. In order to substantiate his say to the - 8 - effect that if the appointment is not made as per the rules, no relief can be given to the employee, the learned counsel has relied upon the various decisions of the Hon’ble Supreme Court and this Court. 8. We have heard the learned counsel appearing in the matter and have also gone through the record and proceedings of the case. We have also perused the judgments of the School Tribunal and the learned Single Judge. The principal question which is required to be considered is whether the appellant was appointed on a clear vacancy on temporary basis or that he was appointed on a temporary basis on the post meant for reserved category. It is specific case of the appellant that at the time of his initial appointment, due procedure of law was followed and thereafter he was appointed on the clear vacancy and that his initial appointment was not on the reserved vacancy. In our view, the School Tribunal was required to consider this question after considering the roster produced before it. The Tribunal has not considered the question whether the initial appointment of the appellant was on the clear vacancy by considering the roster which was already available on record of the Tribunal. Under the circumstances, the matter is required to be sent back to the School - 9 - Tribunal to consider the question as to whether the initial appointment of the appellant was on a clear vacancy and whether clear vacancy was in existence at the time of his initial appointment. The Tribunal shall decide the said aspect in accordance with the provisions of law under Section 5(1) of the Act. If ultimately it is found that the appointment of the appellant was on a clear vacancy for which he was appointed on probation, then the matter is required to be considered from a different angle so far as the termination order is concerned. As against that, if it is found that the appellant was appointed on a reserved vacancy by way of stop gap arrangement, then naturally the matter is required to be considered from different angle. Since this question has not been considered by the Tribunal, the matter is sent back to the Tribunal to decide the same in accordance with the provisions of law. At the time of considering the said question, the Tribunal may also consider the roster point. It is clarified that we have not expressed any opinion on the point whether the appointment of the appellant was on the clear vacancy or on the reserved vacancy and this aspect is to be decided by the Tribunal after hearing both the sides and after going through the evidence on record. The question about grant of approval by the department is - 10 - kept open and it is to be decided by the Tribunal. The Tribunal may also consider the roster produced before it by the appellant. The matter is accordingly sent back to the Tribunal for a fresh decision as indicated in this order. The Tribunal may decide the matter as expeditiously as possible and in any case within a period of three months from the date of receipt of the writ from this Court. 9. The appeal is accordingly allowed to the aforesaid extent by setting aside the impugned orders passed by the Tribunal as well as by the learned Single Judge. 10. There shall be no order as to costs. ( R.M.S.KHANDEPARKAR, J ) ( P.B.MAJMUDAR, J )