W.P. No.4410 OF 1993 : 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4410 OF 1993 Kolhapur Arya Samaj Shikshan Sanstha & Anr. ... Petitioners V/s. Supriya Subodh Khade & Anr. ... Respondents Mr.S.S. Kanetkar for Petitioners Mrs.Ranjana Todankar for Respondent No.1 CORAM: SMT.NISHITA MHATRE, J. DATED: JULY 30, 2010 ORAL JUDGMENT: 1. The petition arises from the order of the School Tribunal dated 27.9.1993. By this order, the School Tribunal has allowed the appeal after condoning the delay in filing the same. The order of termination of service dated 8.6.1992 is quashed by the Tribunal and Respondent No.1 is declared to be in service with continuity of service and consequential benefits. 2. An advertisement was issued by the management on 11.4.1990 indicating that posts for the reserved category candidates were available in the school. The post for an assistant teacher (English) was available for the Other Backward Class category candidates. The qualifications required were B.A., B.Ed. It appears that Respondent No.1 applied in pursuance to this advertisement. She was appointed after a resolution was passed by the managing committee. An appointment order W.P. No.4410 OF 1993 : 2 : was issued to her on 30.6.1990. However, the format of this appointment order is in controversy. According to the petitioners, the appointment order was issued in accordance with the Rules framed under the MEPS Act indicating that she would be in service for a period of one year as she was appointed in a leave/deputation vacancy. She was informed that on the expiry of this period, her services will stand terminated without any notice. On the other hand, a letter issued by the President, Kolhapur Arya Samaj Shikshan Sanstha, has been produced on record before the school tribunal by Respondent No.1 purporting to be her appointment order. That letter mentions that she was being appointed w.e.f. 30.6.1990 after a resolution was passed by the school committee. This letter stipulated that her appointment was purely temporary and against a reserved post. Respondent No.1 accordingly took charge and continued on the said post till her term ended in 1991. On 18.6.1991, she was issued another order of appointment in which there is an endorsement that her appointment was against a clear vacancy for the academic year 1991-92. 3. The services of Respondent No.1 were not continued beyond 1991 on the ground that the petitioners have found a suitable candidate from the reserved category. The management also contended that it was necessary to terminate the services of Respondent No.1 since the department had granted approval to her appointment only for one year as she had been appointed against a post reserved for Scheduled Tribes. On 24.8.1992, a fresh advertisement was issued by the management inviting applications for a teacher in English from the Scheduled Tribe category. W.P. No.4410 OF 1993 : 3 : 4. An appeal was preferred by Respondent No.1 before the school tribunal. The grievance of Respondent No.1 was that she had been illegally terminated from employment and that she was entitled to reinstatement with continuity of service and backwages. An application for condoning the delay in filing the appeal was also preferred. 5. The main contention of the appellant i.e. Respondent No.1 was that since she was appointed as a probationer by the order of 18.6.1991, she could not have been terminated from service with the efflux of time. According to her, the issuance of an advertisement for the post that she was holding was illegal and was required to be set aside. She also contended that the vacancy available with the school when she was appointed was a clear vacancy and not one for the reserved category. 6. The Tribunal after considering the material before it held that the roster point showed that a vacancy was available in the general category and not in the reserved category. The school tribunal also noted that the petitioner was prevaricating and not certain about the nature of the reservation for the post. 7. With the assistance of the learned advocates for the parties, I have perused the material on record. I find that the two orders purported to have been issued to Respondent No.1 appointing her for the academic year 1990-91 are at variance. The order produced by the employee Respondent No.1 herein, stipulates that the post is a reserved category post and that she was being appointed on a temporary basis against this reserved category post. As I have already stated, the copy of the order W.P. No.4410 OF 1993 : 4 : which has been annexed by the petitioner to this petition, does not reflect that the appointment was against a reserved category post. In fact, it apparently stipulates that Respondent No.1 was being appointed in a leave/deputation vacancy. Again, the order of appointment dated 18.6.1991 bears the endorsement that the appointment is against a clear vacancy from 19.6.1991. Besides this, an appointment order of the same date which was produced by the management bears an endorsement that the appointment was against a post reserved for candidates from the Scheduled Tribes. How the post which Respondent No.1 occupied was converted from one for the general category to one reserved for the OBC and then on to one reserved for the Scheduled Tribe candidates is not explained at all by the management. In fact, the appointment roster register for the year 1990-91 indicates that at serial number 43, the vacancy which arose on 30.6.1990 was for the general category. For the roster in 1991-92 again, the vacancy which arose on 18.6.1991 at serial No.47 was for the general category. 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 petitioners' 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 W.P. No.4410 OF 1993 : 5 : 1991, the vacancy which arose was for the general category. 9. In the case of Anjarla Shikshan Sanstha vs. Kumudini Devji Kulkarni & ors., Writ Petition No.4623 of 1985 decided on 30.3.1988, the Division Bench of this court observed that when an institution contends that it had to clear the backlog of reserved category posts, it was necessary for it to establish the same by producing the relevant record, including the roster. The Court has observed, “It is not open for the management to merely claim that the appointment was made against a reserved vacancy. Such a bald claim will not be accepted by any Tribunal. It is necessary for an institution to produce the relevant record and prove that there was a vacancy for the reserved candidate or there was a backlog in respect of the vacancy. The Tribunal would then be required to enquire as to whether any teacher who was subsequently appointed by removing Respondent No.1 from employment”. 10. In the present case, the Tribunal has found that the petitioner had not established that the post was a reserved category post and that Respondent No.1 was appointed against such a post. In fact, the Tribunal has observed that other candidates belonging to the general category have also been appointed and retained in service after the Respondent No.1 was terminated from service. 11. In my opinion, there is no infirmity in the order of the Tribunal. The Tribunal has rightly held that the roster point does not show that the post was available only for a candidate from the reserved category. Similarly, in the case of President, W.P. No.4410 OF 1993 : 6 : Mahila Mandal, Sinnar v/s. Sunita Bansidhar Patole, 2007 (2) Mh.L.J. 105, a learned Single Judge of this Court has observed as follows: 11. Needless to say that in terms of the Constitutional mandate certain posts are to be filled in by the reserved category candidates. It is the contention of the Petitioner-Management that the post in question was meant for reserved category candidate. At the same time, it is not in dispute that the filling of the post of the Reserved Category Candidate has to be on the basis of Roster maintained in this regard. In the case in hand, the petitioners at no stage of the proceeding, has produced the Roster so as to support their contention that the post which was occupied by the Respondent was meant for reserved category candidate. It can hardly be disputed that the best method to ascertain whether the post is meant for reserved category candidate or not, is by following the roster maintained by the management. However, in spite of it being the best piece of evidence to decide the point in issue, it is not understood why the petitioners have chosen not to produce the Roster either before the Tribunal or even in this Petition. There is no explanation forthcoming in that regard. There is no other cogent evidence to establish that the said post was reserved for reserved category candidate. On that count itself the respondent would be justified in contending that adverse inference is to be drawn against the petitioner-Management, and in favour of the respondent in relation to the contention that the post is meant for reserved category candidate. Even otherwise, the records placed before the Tribunal or this court, nowhere disclose that the post was meant for reserve category candidate. 12. In the present case, the stand taken by the management is untenable. The management has been prevaricating and not consistent in its stand as to whether the post was reserved for a particular category. Even assuming the petitioner is right in contending that the post was a reserved post, the roster which was produced before the Tribunal indicated otherwise. 13. Petition dismissed. Rule discharged, No costs. 14. Mr.Kanetkar seeks a stay of the order. Stay refused.