1 W.P.No.1681.03 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1681 OF 2003 Shri Namdeo Ramling Chavan ... Petitioner v/s 1. State of Maharashtra 2. The Deputy Director of Vocational Education & Training, Mumbai-51. 3. The Chairman, Peoples Education Society, Fort, Mumbai – 23. 4. The Principal, Dr.Babasaheb Ambedkar College of Arts, Science & Commerce, At & Post Mahad, Dist.Raigad. 5. Prof.(Miss) Jyotsna Rumaji Gajbhiye ... Respondents Mr.A.M.Joshi for the petitioner. Mr.S.N.Bhosle, A.G.P. for Resp. Nos.1 and 2. Mr.A.G.Kothari for respondent Nos.3 and 4. Mr.G.M.Joshi for respondent No.5. CORAM: SMT.NISHITA MHATRE, J. DATED: 15TH OCTOBER, 2010 2 W.P.No.1681.03 ORAL JUDGMENT: 1. The petition has been filed to challenge the order of the School Tribunal passed in Appeal No.17 of 1999. By the impugned order, the School Tribunal has allowed the appeal filed by respondent No.5 and granted her reinstatement with continuity of service and full back wages. 2. The petitioner was appointed as an Instructor in the trade of Marketing and Salesmanship with respondent No.3 institution. He had completed his M.Com. Degree and had experience of teaching for one year. He was, therefore, appointed on 8.8.1994. According to the petitioner, this appointment was on probation, although a letter which was issued appointing him in service indicated that his appointment was for a purely temporary period. The petitioner has also pointed out that his appointment on probation was approved by the Education Officer. 3. On 6.4.1995, the petitioner was issued an order of termination which was to take effect from 21.4.1995. He challenged his termination from service by filing an appeal before the School Tribunal being Appeal No.137 of 1995. The School Tribunal recorded a compromise reached between the 3 W.P.No.1681.03 parties and the appeal was disposed of. The petitioner was therefore reinstated on 5.2.1999. 4. It appears that while the appeal was pending, the institution advertised for the post of instructor of Marketing and Salesmanship on 20.8.1995. The advertisement mentioned that the appointment would be against a clear and permanent vacancy. Respondent No.5 applied for the post and was accordingly appointed on 21.9.1995 for a temporary period of one year i.e. for the academic year 1995-1996. Her services came to an end on 20.4.1996. Respondent No.5 did not challenge this order of termination of service. She was then reappointed on 20.6.1996. While appointing her on this date, a declaration/undertaking was obtained from her by the management that she accepted her appointment which was subject to the result in the pending litigation in the School Tribunal. She also accepted the fact that her services would be automatically terminated in case the appeal was decided against the management. Her services were terminated on 5.2.1999 as a result of the compromise between the petitioner and the management in the appeal filed by him being Appeal No.17 of 1995. Consequent upon her termination from service the respondent approached the School Tribunal for redressal of her grievance. The School 4 W.P.No.1681.03 Tribunal held that her termination from service was illegal as she had been appointed as a probationer. She had completed two years of service as a probationer and therefore was entitled to permanency. Aggrieved by this decision, the petitioner has filed the present writ petition on the ground that implementation of the order of the School Tribunal would result in his being removed from service. 5. Mr.A.M.Joshi appearing for the petitioner submits that respondent No.1 had declared and undertaken that she had accepted the service with the respondent institution from 20.6.1996 subject to the result of the pending litigation. According to him, therefore, the Tribunal ought not to have granted reinstatement in service to respondent No.5 when his appeal had been decided in terms of the consent terms arrived between him and the institution. Mr.Joshi, submits that the vacancy on which respondent No.5 was appointed was not a clear and permanent vacancy. He points out that the respondent having been appointed while the petitioner’s appeal was pending, could not have been appointed in a clear and permanent vacancy. The vacancy which was created on account of the services of the petitioner being terminated was a temporary vacancy as the petitioner had challenged his termination by filing an appeal on 3.10.1995. The vacancy 5 W.P.No.1681.03 in fact was subjudice as the petitioner had lien over this vacancy. According to Mr.Joshi, the appointment of respondent No.5 was ad-hoc or at best temporary. No rights were conferred on her in respect of her appointment since the appeal filed by the petitioner was pending and the respondent No.5 had agreed to accept employment subject to the result of the appeal. Reliance is placed on the judgment of the Division Bench of this Court in the case of Nilkanth Sambhuappa Ajbe v/s The State of Maharashtra & ors., reported in 1999 (2) ALL MR 81, by Mr.Joshi to fortify his submissions. 6. Mr.Kothari appearing for the institution has adopted the same arguments as Mr.Joshi. He adds that the order disposing of the appeal in terms of the consent terms was a final order passed in the appeal, against the institution. Respondent No.5 was terminated from service as a consequence of the appeal being disposed of in terms of consent terms. He submits that the management merely acted on the undertaking given by respondent No.5 while terminating her services and, therefore, the order of the Tribunal is erroneous. 7. Mr.G.M.Joshi, the learned advocate appearing for 6 W.P.No.1681.03 respondent No.5 submits that she was appointed pursuant to an advertisement being issued and on being selected for the post. According to him, the appointment of respondent No.5 though temporary from 22.9.1995 to 20.4.1996, was converted to probation from 20.6.1996 till her services were terminated on 5.2.1999. He submits that respondent No.5 having completed two years as a probationer, was entitled to permanency in accordance with Section 5 sub-section (3) of the Maharashtra Employees of Private Schools Act. He further submitted that the petitioner could have no lien over the post since the appeal was filed much after respondent No.5 was appointed on 21.9.1995. According to him, the material date is not 20.6.1996 when the respondent No.5 was appointed as a probationer but 21.9.1995 when she was initially appointed in service. He therefore submits that the order of the Tribunal is proper and based on the evidence on record. 8. The Division Bench of this Court in Nilkanth Sambhuappa Ajbe (supra), has opined that two individuals cannot be appointed to the same post. The Division Bench has ruled that a person cannot be appointed in somebody else’s post when the vacancy which arises on account of his termination from service is subject to a litigation pending in Court. Such a vacancy will not be a permanent or a clear 7 W.P.No.1681.03 vacancy. 9. In the light of the aforesaid judgments, in my opinion, the appointment of respondent No.5 was not against a clear vacancy. The initial appointment on 22.9.1995 was on a temporary basis which came to an end on 20.4.1996. Admittedly, that order has not been challenged by respondent No.5. Her appointment on probation was with effect from 20.6.1996. However, this order, appointing her on probation, could not have been issued in view of the petitioner’s appeal being pending on 3.10.1995. The pending appeal created a situation where the vacancy which had arisen on terminating the services of the petitioner was not a clear and permanent one. In these circumstances, the contention of the learned advocate for respondent No.5 that she had been appointed against a clear vacancy is unsustainable. 10. A perusal of the appeal filed by the petitioner, namely, Appeal No.137 of 1995, reveals that the contention of the petitioner in the appeal was that although the appointment order issued to him was for an appointment on temporary basis since the vacancy was a clear vacancy he was entitled to be appointed as a probationer. Thus, the petitioner had, in 8 W.P.No.1681.03 fact, in no uncertain terms claimed that he was entitled to an appointment on probation with effect from 8.8.1994. The appeal has been disposed of in terms of consent terms wherein the parties have agreed that the petitioner will be appointed as an instructor in Marketing and Salesmanship with effect from 5.2.1999, on probation for a period of two years. The petitioner had agreed that he would not claim back wages for the period after he was terminated from service and till his appointment on 5.2.1999 as a probationer. 11. In such circumstances, the impugned order passed by the School Tribunal in Appeal No.137 of 1995 is set aside. 12. The writ petition is allowed. Rule made absolute. No order as to costs 13. The petitioner will be entitled to reinstatement with continuity of service and back wages. In any event because of the stay granted by this Court on 12.6.2003, the petitioner has been in service and has earned his remuneration accordingly. .....