1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 1340 OF 2009 1. The President, Samta Shikshan Sanstha, 562, Sadashiv Peth, Pune. 2. The Secretary, Samta Shikshan Sanstha, 562, Sadashiv Peth, Pune. 3. The Head Master, Bhagabai Ananda Wagh, Prathamik Ashram Scholl, Morane, Tq. & Dist. Dhule. ....Petitioners. Versus 1. The State of Maharashtra Through Secretary, Social Welfare Department, Mantralaya, Mumbai. 2. Special Social Welfare Officer, Dhule, Dist. Dhule. 3. Smt. Anita Namdeo Wagh, Age 30 yrs., Occu. Nil., R/o. c/o. Sanjay Digamber Mohite, Sampada Apartment, Near Maleria Office, Sakri Road, Dhule, Dist. Dhule. 4. The Regional Social Welfare, Nasik, Region Nasik, Nasik Road, Nasik. ....Respondents. Shri. V.D. Dhoble, Advocate for petitioners. Shri. K.M. Suryawanshi, A.G.P. for respondent Nos. 1, 2 & 4. Smt. A.N. Ansari, Advocate for respondent No. 3. CORAM : R.K. DESHPANDE, J. DATE : 30th June 2010. 2 ORAL JUDGMENT : 1. This writ petition is preferred by the petitioner/management, challenging the judgment and order dated 15.12.2008 passed by the respondent No. 4/the Divisional Social Welfare Officer, Nasik Division, Nasik in appeal bearing No. 10/2007. By this order, the appeal No. 10/2007, filed by the respondent No. 3/employee, working as an Assistant Teacher, has been allowed by setting aside the order of termination dated 1.4.2007 and granting reinstatement with backwages in service. 2. Smt. Ansari, learned counsel appears for respondent No. 3, caveator employee. The learned A.G.P. appears for respondent Nos. 1, 2 and 4. The learned counsel for the parties agree that the matter can be finally disposed of at the stage of admission. Hence, Rule, made returnable forthwith. The learned counsels for the respondents waive service of notice. By consent of parties the matter is heard finally. 3. Respondent No. 3 - Smt. Anita Namdev Wagh, working as an Assistant Teacher in Primary Ashram School, preferred an appeal No. 10/2007 before the Divisional Social Welfare Officer, challenging her termination from 1.4.2007. She alleged that she has worked in the post of Assistant Teacher from 18.6.1999 to 30.4.2007. However, in spite of the fact that she has acquired deemed confirmation in service, she has been terminated with effect from 1.4.2007. The case of the respondent No. 3 3 was that she belongs to scheduled caste (SC) category and her appointment was made from the said category. However, she has been terminated on the ground that the post on which she has been appointed, is reserved for other backward class (OBC) category. 4. The stand of the petitioner/management was that the respondent No. 3/employee had no right on that post, as she was appointed temporarily on year to year basis. According to the petitioner/ management, the post was reserved for OBC category, as per the directions given from the office of Assistant Commissioner, (B.C.Cell), Pune Division, Pune, which is the competent authority. The post is required to be filled in from OBC category. Hence, the services of the petitioner were terminated. 5. The Divisional Social Welfare Officer, by his judgment and order dated 15.12.2008, allowed the appeal, holding that the respondent No. 3 was working continuously in the Primary Ashram School from 18.6.199 to 30.4.2007 and that her appointment was also approved by the Special District Social Welfare Officer. It was further held that the provisions of Maharashtra Employees of Private Schools (Condition of Service) Regulation Act (hereinafter referred to as "M.E.P.S. Act") and Rules framed thereunder are applicable in this case and the termination of the respondent No. 3 was in violation of the said provisions of M.E.P.S. Act and Rules framed thereunder. It was held that the respondent No. 3 had 4 acquired the confirmation in service and without holding inquiry, her services were terminated. 6. Shri. Dhoble, the learned counsel for the petitioners, has urged that the post, which was held by the respondent No. 3, was require to be reserved for OBC category, as per the endorsement made by the office of the Assistant Commissioner (B.C.Cell) Pune Division, Pune. According to him, in fact there was an endorsement made that if such backlog of OBC category is not fulfilled, then the salary payable to 2 posts filled in from SC category and 1 post filled in from VJ category shall be stopped. He further submits that the appointment of the respondent No. 3 was on temporary year to year basis and the services of the respondent No. 3 were not governed by the M.E.P.S. Act and Rules framed thereunder. He relies upon the decision of the Full Bench of this Court reported in 2002 (3) Mh.L.J. 659 in the case of Suryakant Sheshrao Panchal Vs. Vasantrao Naik Vimukta Jati, Bhatakya Jamati Aadarsh Prasarak Mandal and others. According to him, the provisions of M.E.P.S. Act should not have been invoked by the appellate authority, deciding the appeal. According to him, the management rightly terminated the services of respondent No. 3, as the post was filled in from OBC category and the respondent No. 3 has no right to be reinstated in the service. 7. As against the aforesaid submissions, the affidavit is filed by the Special District Social Welfare Officer, Dhule stating that the petitioners 5 have published an advertisement in "Dainik Apala Maharashtra" on 14.10.2007 for recruitment of Assistant Teachers from SC category. According to the stand taken in the said affidavit, the respondent No. 3 has completed more than 8 years of satisfactory service, therefore, the termination was rightly held to be improper by the authority concerned. Smt. Ansari, learned counsel appearing for respondent No. 3 also supports the order passed by the Divisional Social Welfare Officer and submits that the appointment of respondent No. 3 is from SC category and she had acquired deemed permanency in service. 8. The stand of the management that the post was to be filled in from OBC category, has not been taken into consideration by the Divisional Social Welfare Officer in his impugned order. In fact, such an issue was not framed. It is the core issue, as to whether the post in which the respondent No. 3 was appointed initially in the year 1999 was reserved for SC category and whether there was a backlog of the OBC category. The management has not taken a specific stand, pointing out as to how many posts were existing on the date of appointment of respondent No. 3 and for which category the posts were earmarked. The Divisional Social Welfare Officer has applied the provisions of M.E.P.S. Act, to hold that there is a deemed confirmation of respondent No. 3 in service. Since the core issue involved in the matter has not been adjudicated, the findings recorded by the Divisional Social Welfare Officer cannot be sustained. The issue regarding the appointment of the 6 respondent No. 3, whether was from SC category or was in the post reserved from OBC category, was required to be framed and decided, before addressing to other questions which are involved in the appeal. Similarly, the question of applicability of M.E.P.S. Act and Rules is also required to be considered in the light of the decision of Full Bench cited supra. Hence, without going into the merits of the controversy involved, the impugned order is liable to be quashed and set aside on this short ground, with direction to such authority to decide the same afresh in accordance with law, after giving parties the opportunity to place their case in writing and to furnish their evidence in support of their contentions. 9. In the result, the instant writ petition is allowed. The order dated 15.12.2008 passed by the Divisional Social Welfare Officer, Nasik Division, Nasik passed in appeal No. 10/2007 is hereby quashed and set aside. The matter is remitted back to the concerned authority for deciding the appeal No. 10/2007 on its own merits in accordance with law, within a period of four months, after giving an opportunity to all the parties to put forth their plea in writing and produce evidence on record in support of it. Rule is made absolute in the aforesaid terms. No order as to costs. [ R.K. DESHPANDE, J. ] ssc/wp1340.09