:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1020 OF 2002 WRIT PETITION NO. 1020 OF 2002 WRIT PETITION NO. 1020 OF 2002 1. Bhairvnath Shikshan Mandal ] At Post : Khutbhau, Tal : Daund ] District : Pune ] through its Secretary ] 2. The Headmaster ] Bhairvnath Secondary School ] Khutbhau, Tal: Daund, Dist : Pune ]Petitioners versus Raju Haribhau Thombe ] Adult, Occ: Service ] Residing at Naveen Mukund Nagar ] Room No. 55/6, Ahmadnagar ]Respondent Mr. Sandeep Pathak i/b. Mr. A. V. Anturkar for the Petitioners. Mr. Dilip Bodake for the Respondent. CORAM : S. A. BOBDE, J. CORAM : S. A. BOBDE, J. CORAM : S. A. BOBDE, J. DATE : 12TH FEBRUARY, 2009 DATE : 12TH FEBRUARY, 2009 DATE : 12TH FEBRUARY, 2009 ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : . Heard the learned counsel for the parties. 2. The petitioner society has challenged the Judgment of the School Tribunal allowing the respondent’s appeal thereby setting aside the termination of his services and directing his reinstatement with full backwages. The respondent :2: belongs to the Scheduled Caste. A post of Assistant Teacher in drawing was reserved for a Scheduled Tribe category. In this post the respondent was appointed on a temporary basis for one year as an Assistant Teacher by an order dated 24.4.1995. There is no dispute about the above fact. 3. On 30.3.1996 the services of the respondent were terminated on the ground that the respondent was appointed in a post reserved for Scheduled Tribe candidate and it was necessary to make an appointment of such a candidate to that post. 4. Aggrieved, the respondent preferred an appeal before the School Tribunal. Before the School Tribunal, the petitioners contended that the respondent was appointed on a purely temporary basis as a drawing teacher; that he was so appointed in a post meant for Scheduled Tribe category and therefore his services were properly terminated at the end of academic session in order to fill up that post by appointment of a candidate belonging to the Scheduled Tribe. The Tribunal rejected this contention on construction of Rule 9 (9)(a) of The Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, which reads as follows: :3: . "9. Appointment of staff ...... "9. Appointment of staff ...... "9. Appointment of staff ...... (1) .... (1) .... (1) .... (2) .... (2) .... (2) .... (3) .... (3) .... (3) .... (4) .... (4) .... (4) .... (5) .... (5) .... (5) .... (6) .... (6) .... (6) .... (7) .... (7) .... (7) .... (8) .... (8) .... (8) .... (9) (a) In case it is not possible to fill (9) (a) In case it is not possible to fill (9) (a) In case it is not possible to fill in the teaching post for which a vacancy is in the teaching post for which a vacancy is in the teaching post for which a vacancy is reserved for a person belonging to a reserved for a person belonging to a reserved for a person belonging to a particular category of Backward Classes, the particular category of Backward Classes, the particular category of Backward Classes, the post may be filled in by selecting a post may be filled in by selecting a post may be filled in by selecting a candidate from the other remaining candidate from the other remaining candidate from the other remaining categories in the order specified in categories in the order specified in categories in the order specified in sub-rule (7) and if no person from any of sub-rule (7) and if no person from any of sub-rule (7) and if no person from any of the categories is available, the post may be the categories is available, the post may be the categories is available, the post may be filled in temporarily on an year to year filled in temporarily on an year to year filled in temporarily on an year to year basis by a candidate not belonging to the basis by a candidate not belonging to the basis by a candidate not belonging to the Backward Classes." Backward Classes." Backward Classes." 5. The Tribunal found that a candidate can be appointed temporarily under that Rule only if no candidate from any backward class category is available. A candidate from any of the backward class category can only be appointed on a regular basis if the post is meant for appointment for a candidate from the backward class. Accordingly, the Tribunal found that the respondent who belonged to the Scheduled Caste category was entitled to be employed on a regular basis and therefore could not have been appointed on the post reserved for a S.T. candidate on a temporary basis. Thus treating the :4: appointment as having been made on regular basis by virtue of Rule 9 (9)(a), the Tribunal set aside the termination and directed reinstatement. 6. It may be noted in the present case after terminating the services of the respondent, who was a Scheduled Caste candidate, the petitioners have again appointed another candidate from the S.C. category to the post in question which was meant for a S.T. candidate. The reason for termination of the respondent’s services were obviously not meant to be acted upon. 7. The learned counsel for the petitioners submitted that the appointment of the respondent was clearly on a temporary basis and made for a one year. According to the learned counsel, the vacancy is reserved for a person belonging to a particular category of backward class. Rule permits the management to fill it up by selecting a candidate from the other remaining categories of backward class in the order specified in sub rule 7, which reads as follows:- "The Management shall reserve 34 per cent of "The Management shall reserve 34 per cent of "The Management shall reserve 34 per cent of the total number of posts of the teaching as the total number of posts of the teaching as the total number of posts of the teaching as well as non-teaching staff for the members well as non-teaching staff for the members well as non-teaching staff for the members :5: of the Scheduled Castes, Scheduled Castes of the Scheduled Castes, Scheduled Castes of the Scheduled Castes, Scheduled Castes converts to Buddhism, Scheduled Tribes, converts to Buddhism, Scheduled Tribes, converts to Buddhism, Scheduled Tribes, Denotified tribes, Nomadic Tribes and other Denotified tribes, Nomadic Tribes and other Denotified tribes, Nomadic Tribes and other Backward Classes as follows, namely :- Backward Classes as follows, namely :- Backward Classes as follows, namely :- (a) Scheduled Castes and Schedule (a) Scheduled Castes and Schedule (a) Scheduled Castes and Schedule Castes converts to Buddism. Castes converts to Buddism. Castes converts to Buddism. 13% 13% 13% (b) Scheduled Tribes including those (b) Scheduled Tribes including those (b) Scheduled Tribes including those living outside the specified living outside the specified living outside the specified areas. 7% areas. 7% areas. 7% (c) Denotified Tribes and Nomadic (c) Denotified Tribes and Nomadic (c) Denotified Tribes and Nomadic Tribes Tribes Tribes 4% 4% 4% (d) Other Backward Classes. 10%. (d) Other Backward Classes. 10%. (d) Other Backward Classes. 10%. Similarly, the Rule permits the management to fill up any vacancy by appointing a candidate not belonging to the backward classes. Thus, according to the learned counsel for the petitioners, the Rule cannot be interpreted to mean that the vacancy reserved for a particular category of backward class cannot be filled in on a temporary basis. This point is no more res integira in 2006 (1) Mh.L.J. 2006 (1) Mh.L.J. 2006 (1) Mh.L.J. 713 Kankavali Shikshan Sanstha & Ors. vs. M. R. 713 Kankavali Shikshan Sanstha & Ors. vs. M. R. 713 Kankavali Shikshan Sanstha & Ors. vs. M. R. Gavali & Ors., Gavali & Ors., Gavali & Ors., where Rule 9 (9)(a) (supra) held for consideration. The Supreme Court referred to its decision in Shakuntala Gapatsa Shirbhate vs. Industrial Weaving Cooperative Society & Ors., AIR 1994 SC 36 and approved the view taken therein. Their Lordships held as follows:- "The law laid down by this Court on the "The law laid down by this Court on the "The law laid down by this Court on the interpretation of Rule 9(9)(a) is in our interpretation of Rule 9(9)(a) is in our interpretation of Rule 9(9)(a) is in our :6: view resolves the controversy in the present view resolves the controversy in the present view resolves the controversy in the present case. The first respondent was appointed in case. The first respondent was appointed in case. The first respondent was appointed in 1994. The vacancy was reserved for an ST 1994. The vacancy was reserved for an ST 1994. The vacancy was reserved for an ST candidate. At that stage there was no candidate. At that stage there was no candidate. At that stage there was no candidate belonging to ST available. There candidate belonging to ST available. There candidate belonging to ST available. There is no dispute about the fact that the first is no dispute about the fact that the first is no dispute about the fact that the first respondent belongs to Hindu Mali Community respondent belongs to Hindu Mali Community respondent belongs to Hindu Mali Community which is an OBC. In the circumstances, in which is an OBC. In the circumstances, in which is an OBC. In the circumstances, in terms of the provisions of Rule 9(9)(a) terms of the provisions of Rule 9(9)(a) terms of the provisions of Rule 9(9)(a) since no other candidate belonging to ST was since no other candidate belonging to ST was since no other candidate belonging to ST was available, the first respondent was entitled available, the first respondent was entitled available, the first respondent was entitled to appointment on a regular basis. This to appointment on a regular basis. This to appointment on a regular basis. This Court, in the above case, held that in the Court, in the above case, held that in the Court, in the above case, held that in the absence of a candidate belonging to the absence of a candidate belonging to the absence of a candidate belonging to the reserved category concerned, the rule reserved category concerned, the rule reserved category concerned, the rule enjoins year to year appointment only if a enjoins year to year appointment only if a enjoins year to year appointment only if a available candidate does not belong to a available candidate does not belong to a available candidate does not belong to a backward class. The respondent belonging as backward class. The respondent belonging as backward class. The respondent belonging as he does to a backward class was entitled to he does to a backward class was entitled to he does to a backward class was entitled to a regular appointment." a regular appointment." a regular appointment." Thus, it is clear that under Rule 9 (9)(a), where vacancy is reserved for a particular backward class candidate a candidate belonging to another backward class category can be appointed only on a regular basis, a temporary appointment can be made only where no candidate from any backward category is available. As a consequence it must also be held that the power to make temporary appointments is not available where a post reserved for a particular backward class category is filled in by a candidate from another backward class category. Thus, the reliance on the Judgment of the Supreme Court in Hindustan Education Society & Anr. vs. Sk. Kaleem Hindustan Education Society & Anr. vs. Sk. Kaleem Hindustan Education Society & Anr. vs. Sk. Kaleem Sk. Gulam Nabi & Ors. (1997) 5 Supreme Court Cases Sk. Gulam Nabi & Ors. (1997) 5 Supreme Court Cases Sk. Gulam Nabi & Ors. (1997) 5 Supreme Court Cases 152 152 152 where the appointment was not of a reserved :7: category candidate in a post meant for a particular backward category, is not applicable to the present case. There is thus no merit in the petition, which is hereby dismissed. Rule disposed of. (S. A. BOBDE, J.) (S. A. BOBDE, J.) (S. A. BOBDE, J.)