1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO.249/2011 ONKAR WANKHADE ..VS.. VIDARBHA SAMAJ KALYAN & ORS - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CORAM : SMT. VASANTI A. NAIK, J. DATE : JANUARY 28, 2011. By this petition, the petitioner impugns the judgment passed by the Presiding Officer, School Tribunal, Amravati on 28.1.2010 dismissing an appeal filed by the petitioner under 9 of the Maharashtra Employees of Private School [Conditions of Service] Regulation Act 1977. It was the case of the petitioner before the Tribunal that the respondent/management had appointed the petitioner on a permanent post in clear vacancy as Assistant Teacher in December 1990 and thereafter, every year the petitioner was continued in service till his services were terminated in 1998. it is stated by the petitioner in the appeal memo that there was a break of 8 to 15 days in the appointment orders for each academic session. It was the case of the petitioner that he was a deemed confirmed teacher and the respondent/management could not have prevented him from signing the muster roll w.e.f.2.5.1998, without assigning any reason and without holding any enquiry against him. The respondent/ management denied the case of the petitioner and also denied that the petitioner was appointed in 2 the academic session 1991 and subsequently appointed in the subsequent years till the year 1998. It was the case of the management that the appointment of the petitioner was made on clearly temporary basis from session to session and the petitioner could not have claimed permanency on the post of Assistant Teacher. It was stated by the management in the written statement that the post of Assistant Teacher was reserved for reserved class Category candidate and since the candidate was not available, the petitioner was appointed temporarily from time to time. On an appreciation of the documents produced by the parties on record, the tribunal held that it was not the case of the petitioner that he was appointed on the post of Assistant Teacher on a post which was reserved for the O.B.C.category and that she was selected after following the due procedure of advertisement and selection. The court held that the discharge certificates discharging the services of the petitioner every year showed that there was a clear break of more than 15 days or one month in granting fresh temporary appointment to the petitioner during the relevant years. The Tribunal found that admittedly no procedure prescribed by law was followed while giving a fresh appointment to the petitioner every year. The Tribunal also found that the petitioner had not pleaded in the appeal memo and had also not produced a single document on record to show as to whether the post on which he was appointed was reserved for Scheduled Tribe Category candidate, Open Category Candidate or for a candidate from O.B.C.Category. Since the burden lies on the petitioner to prove the aforesaid fact and also the position 3 that he was appointed after following due procedure of law the Tribunal held that the termination of the services of the petitioner automatically came to an end at the end of the academic session 97-1998. The court further found from the submissions made by the counsel for the petitioner, that the petitioner had given an application every year in 1993, 1994 and 1995 for seeking an appointment during the relevant academic sessions. The petitioner had joined every year and submitted his joining report on the basis of the appointment orders issued to him every year. Since the procedure prescribed by law was not followed while the petitioner was appointed as Assistant Teacher and since the appointment of the petitioner was on a temporary basis from year to year expiring at the end of each of the academic session the tribunal was justified in dismissing the appeal filed by the petitioner by holding that the petitioner did not have a legal right to continue on the post. The submission made on behalf of the petitioner that the post was not earmarked for a Scheduled Tribe Candidate as pleaded by the respondent/ management has no relevance or bearing in the facts and circumstances of the case, specially when it was not the case of the petitioner in the appeal memo that the post was advertised for an Open or O.B.C. Category candidate and the petitioner was appointed in the said post by following due procedure of law. Moreover, it is stated in the written statement that the post was earmarked for a reserved class candidate and it is not the case of the respondent that it was earmarked for a Scheduled Tribe candidate only. The Tribunal 4 has also therefore, not adverted its mind to this aspect of the matter and rightly so, as the petitioner was appointed from time to time temporarily with breaks of more than one month on the basis of the applications made by the petitioner at the end of the academic year for appointing him as an Assistant Teacher in service. The judgment passed by the Tribunal on 28.1.2010 does not suffer from an error, much less a jurisdiction error so as to interfere with the same in exercise of the writ jurisdiction. The writ petition fails and is dismissed with no order as to costs. JUDGE SMP