ssp 1 LPA 255 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO.255 OF 2010 IN WRIT PETITION NO.4410 OF 1993 The Kolhapur Arya Samaj Shikshan Sanstha and Anr. .....Appellants V/s. Mrs.Khade Supriya Subodh and Anr. ..... Respondents WITH CIVIL APPLICATION NO.319 OF 2010 IN LETTERS PATENT APPEAL NO.255 OF 2010 IN WRIT PETITION NO.4410 OF 1993 Mr.S.S.Kanetkar, for the appellants. Ms.Ranjana Todankar, for the respondent No.1. CORAM :P.B.MAJMUDAR & MRS.MRIDULA BHATKAR, JJ. DATE : 10th DECEMBER, 2010 P.C. 1. This appeal is preferred against the order of the learned Single Judge dated July 30, 2010. By the impugned order, the learned Single Judge has dismissed the writ petition filed by the present appellants-Management and confirmed the order of the School Tribunal. 2. The concerned respondent-Teacher challenged her termination order dated 08-06-1992 before the School Tribunal on the ground that the same was passed arbitrarily and even though, petitioner was appointed on clear vacancy, which was not a reserved vacancy, the ssp 2 LPA 255 of 2010 Management terminated the service of the respondent and her appointment was temporary and was against the reserved vacancy. The Management gave an advertisement on 11-04-1990 in which post was indicated for reserved category. Respondent No.1 applied for the said post in pursuance of the said advertisement. She was appointed after the resolution was passed by the committee. An appointment order was issued on 30-06-1990. There is a dispute over the format of appointment order. The service of respondent No.1 was not continued beyond 1991 on the ground that the appellant herein found suitable candidate from the reserved category. The School Tribunal after considering the evidence on record, found that the appointment was on clear vacancy and not in the reserved category and the termination was found to be illegal. 3. The learned counsel for the appellant fairly conceded that as per the said roster, vacancy which arose on 18-06-1991 at Serial No.47, was for general category. It is submitted by the learned counsel for the appellant that the concerned Secretary did not maintain the roster properly at the relevant time. In our view, if that be so, the Management could have taken action against the concerned Secretary for not maintaining the roster properly. When the appointment is made as per the roster of a clear vacancy, the School Tribunal was rightly set aside the termination order. The Tribunal and the learned Single Judge rightly ssp 3 LPA 255 of 2010 found that the appointment of respondent No.1 was against an open and clear vacancy and therefore, she could have only been appointed as a probationer. The relevant observations of the learned Single, reads as under : - “8. The tribunal in my opinion, has rightly held that the appointment of respondent No.1 was against an open and clear vacancy and therefore, she could have only been appointed as a probationer. The documents on record bear this out. As I have already mentioned that the petitioners stand is vacillating. It was first the petitioner’s contention that the appointment of respondent No.1 was made against a post reserved for a Nomadic Tribe candidate. However, the advertisement which was issued was for an OBC candidate. Again, the appointment letters relied on by the management mentions that the appointment in 1991 was made against the post reserved for a Scheduled Tribe candidate whereas the roster shows that even in 1991, the vacancy which arose was for the general category. 4. In our view, it cannot be said that the learned Single Judge has committed any error of law in passing the impugned order, especially when as per the roster, the post in question was shown as general category. At this stage, the learned counsel for the appellant placed reliance on a judgment of the Supreme Court in the case of Hindustan Education Society and Anr. V/s. Sk.Kaleem Sk.Gulam Nabi and Others, AIR 1997 SC 2126, wherein it was held that “candidate appointed in clear vacancy for 11 months is a temporary appointment and not a permanent one and cannot ssp 4 LPA 255 of 2010 be treated as regularly appointed”. 5. In the instant case, after examining the evidence on record, the School Tribunal as well as the learned Single Judge held that the appointment was made on general category as per the roster and such appointment could not have been made on probation. The judgment on which reliance is sought to be placed on behalf of the appellant is not applicable so far as the present case is concerned. We accordingly do not find any substance in the above appeal. Appeal is accordingly dismissed. 6. In view of the dismissal of the appeal, the civil application No.319 of 2010 does not survive and is accordingly disposed of. ( MRS.MRIDULA BHATKAR, J. ) ( P.B.MAJMUDAR, J. )