1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 836 OF 2009 Shri Sanjay Jagannath Shirke ...Petitioner vs. The State of Maharashtra & Ors. ...Respondents Mr.A.M. Joshi for the Petitioner. Mr.S.K. Chinchlikar, AGP for Respondent Nos.1 to 3. Mr.A.M. Kulkarni for Respondent Nos.4 and 5. CORAM : V.M. KANADE, J. DATED : JULY 13, 2009 P.C. :- 1 Heard the learned Counsel for the petitioner and the learned Counsel for the respondents. 2 Rule. Rule is made returnable forthwith. By consent of parties, the petition is taken up for final hearing. 3 The petitioner is challenging judgment and 2 order passed by the Presiding Officer, School Tribunal, dated 5.7.2008. By the said judgment and order, the Tribunal was pleased to dismiss the appeals filed by the petitioner herein. 4 The petitioner was working in the respondent school as Assistant Teacher and he was initially appointed in the year 1996-97. Thereafter, his services were terminated at the end of the year and he was again appointed. In this manner, he continued to work in the said school till he was not allowed to sign the muster roll from 2.1.99. It is the case of the petitioner that though direction was given by the Enquiry Officer, the management did not permit him to sign the muster roll or to discharge his duties. The petitioner had, no other option but to file an appeal against the order of  otherwise termination . Thereafter, order of termination was issued which was also challenged by filing second appeal. The management filed their written statement and it was contended that the petitioner had 3 abandoned his services as he remained absent for more than 7 days and since his appointment was made on temporary basis, his services were terminated. It was further contended that the petitioner was appointed against the reserved category post and as such, he was appointed on temporary basis on year to year basis. It was, therefore, the case of the respondent that the petitioner had no right to the said post. 5 The Tribunal decided both the appeals by giving judgment. It came to the conclusion that the appointment of the petitioner was against the reserved category post. The Tribunal further observed that since he was appointed against the reserved category post in view of Rule 9(b), the appointment was made on purely temporary basis. The Tribunal relied on Rule 9(b) which is reproduced in the impugned order. 6 Shri Joshi, learned Counsel for the 4 petitioner pointed out that the Tribunal has committed an error of law which is apparent on the face of record by relying on Rule 9(b). He submitted that Rule 9(b) clearly states that it relates to non-teaching post and the petitioner being a Assistant Teacher, the said Rule was not applicable to him. He further submitted that the Tribunal had erred in holding that the petitioner was appointed against the reserved category post. He submitted that there was clear material on record to show that in the past, persons from open category candidates had been regularised and approval was granted by the Enquiry Officer. He submitted that this material was not referred to by the Tribunal in its order while giving a finding that the petitioner had been appointed against a reserved category post. The learned Counsel for the petitioner submitted that therefore, the order was liable to be set aside. It was further submitted that the advertisements itself which were issued in 1996, 1997 and 1998 were illegal since all the posts were shown to be 5 reserved category posts. He submitted that this was against the mandate given by the Apex Court in Mandal Commission s case and subsequent decisions of the Apex Court. 7 Shri Kulkarni, learned Counsel for the respondents, firstly submitted that the ground that the advertisement was illegal, was not taken in the appeal memo and the Tribunal had, therefore, rightly not taken into consideration this aspect. He submitted that though wrong rule was quoted by the Tribunal, that would not make the order illegal. He submitted that since the finding was given that the petitioner was appointed against the reserved category post, the natural consequence of the said finding was that he had no right to the said post, therefore, the management was justified in terminating the services. He invited my attention to two judgments of this Court in the case of Mayur Mahila Shikshan Sanstha and another vs. M.D. Mali and others, reported in 2007(5) Mh.L.J. 894 and 2) 6 Vilasrao Sarjerao Patil vs. Asarondi Panchkroshi Shikshan Prasarak Mandal and others, reported in 2004(4) Mh.L.J. 762. 8 There is much substance in the submission made by the learned Counsel for the petitioner. Perusal of the impugned order clearly discloses that the Tribunal had relied on the Rule which does not apply to the facts of the present case. The petitioner, admittedly, was appointed as Assistant Teacher. The Tribunal in the impugned order has observed as under :- Since he was appointed against the post reserved category Rule 9 of MEPS Rules 1981 comes into play and his appointment must be accordance with Rule 9(b) of MEPS Rules 1981 which runs as under :- (b) In the case of a non teaching post, if a person from the particular category of backward Classes is not available the management shall made effort with regular intervals to fill the post within the period of five years and the post shall not be 7 filled up during that period by appointing any other person who does not belong to the respective category of Backward Class. 12. From the above mandatory provision of Rule 9(b) of the MEPS Rules it is clear that the appointment of the appellant against reserved post was a appointment made purely on temporary basis for one academic year on every occasion. The time to fill in the reserved category post was for five years and till then the backlog of the reserved category has to be carried forward and the management has statutory obligation to make honest efforts to appoint the candidate from the backward class within the period 5 years. Since the appellant did not render 5 years service against the reserved post he has no right to hold the post as permanent employee. It is therefore, clear that the appellant was not the permanent employee of the management though he has rendered more than 2 years service. 9 The said observation, therefore, is patently incorrect since Rule 9(b) clearly applies to a non-teaching post. The foundation of the entire judgment, therefore, in my view, is erroneous. The Tribunal also has not taken into consideration the 8 other material which was brought on record by the petitioner while coming to a finding that he was appointed against the reserved category post. The submission made by the learned Counsel for the respondents that because of this finding the obvious error should be neglected and the order should be confirmed, cannot be accepted. The ratio of the judgment on which reliance is placed by the respondent will not apply to the facts of the present case. Under these circumstances, in my view, it would be appropriate if the impugned order is set aside. 10 The impugned order is hereby set aside. The matter is remanded back to the Tribunal with a direction to decide the appeal, expeditiously, within a period of six months. All contentions of both the parties are kept open. 11 Shri Joshi, learned Counsel for the petitioner submits that he may be permitted to file 9 an application for amendment of the appeal memo. 12 If an application for amendment is filed, the same may be decided on merits after taking into consideration the objections raised by the respondents. 13 The Presiding Officer shall not be influenced by any of the observations made by ths Court while deciding the application for amendment of the appeal memo. 14 The Writ Petition, accordingly, is allowed in the aforesaid terms and is disposed of. (V.M. KANADE, J.)