1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 352 OF 2002 Kondiba w/o Vaijnath Bomnale age 36 years, occ. nil r/o Walandi, Tq. Udgir Dist. Latur. .. PETITIONER VERSUS 1 Gramin Shikshan Prasarak Mandal Walandi, Tq. Udgir Dist. latur. through its Secretary 2 Education Officer (Secondary) Zilla Parishad, Latur. 3 Deputy Director of Education at Aurangabad. 4 Principal, Shri Balaji Higher Secondary School Walandi, Tq. Udgir Dist. Latur. .. RESPONDENTS Mr. Sanjay Kolhare, Advocate for the petitioner. Mr. N.H. Borade, AGP for the State. Mr. S.S. Rudrawar, Advocate for respondent no. 1 Mr. V.D. Gunale, Advocate for respondent no.4. ===== CORAM : R. M. BORDE, J. RESERVED ON : 6 th November, 2009 PRONOUNCED ON : 7 th November, 2009 2 ORAL JUDGMENT : 1 Petitioner who was employed as lecturer in junior college at institution run by respondent no. 1 is assailing the order passed by the school tribunal, Aurangabad in Appeal no. 97/97 decided on 18-10-2001. It is contended by the petitioner that he was appointed since 12-6-1995 as a lecturer in junior college run by respondent no. 1 institution initially for a period of one year by issuing order to that effect. Services of the petitioner as lecturer were continued for subsequent academic year. According to the petitioner, management resolved by adopting resolution on 16-6-1996 to confirm the appointment of the petitioner on permanent basis. Accordingly, order to that effect also came to be issued. Petitioner thus contends that his appointment to the post of lecturer is of permanent nature. The services of the petitioner were approved by the Education Officer for the academic year 1995-1996. Education Officer also accorded approval to the services for the academic year 1996-1997. According to the petitioner, he was not allowed to join the services and was also prevented from signing the muster since 11-6-1997. Petitioner alleges that the respondent no. 1 and 4 have orally terminated his services. Petitioner further contends that his appointment is as against a clear vacancy and as he has served the management for two years, in accordance with the provisions of section 5(2) 3 of the Maharasthra Employees of Private School (Conditions of Service) Act, 1977 he shall be deemed to be confirmed employee. Petitioner as such prays for quashing and setting aside the impugned order of oral termination dt. 11-6-1997 and also prays for direction to respondent nos. 1 to 4 to continue him in service as junior lecturer by treating him as permanent employee. 2 Respondent nos. 1 and 4 appeared before the school tribunal and resisted the appeal by presenting written statement. According to the contentions raised by the management, advertisement calling applications for appointment to the post of junior lecturer was published on 2-6-1995. The post of lecturer was earmarked for the candidate belonging to Scheduled Tribe category and it was mentioned in the advertisement itself that if candidate belonging to Scheduled Tribe category is not available, then the candidate belonging to open category would be considered for appointment. According to the management, appointment of the petitioner was purely on temporary basis and as against the reserved vacancy meant for Scheduled Tribe category. Petitioner joined services as lecturer on 12-6-1995. He was allowed to continue for the academic year 1995-1996. For the next academic year i.e. 1996-1997 an advertisement was 4 published calling applications for making appointment to the post which was shown to be reserved for Scheduled Tribe category. Appointment of the petitioner was as against the seat earmarked for reserved category and it was for temporary duration i.e. one academic year. It is contended that on completion of the academic year, petitioner is not entitled to claim continuation in service. Management also contends that school had informed the employee by issuing notice on 29-3-1997 that his services have already come to an end. It is denied that the petitioner is prevented from rendering his services or that there is oral termination as contended by the employee. Management / respondent nos. 1 and 4 therefore pray for dismissal of the petition. 3 The learned Presiding Officer of the school tribunal after receiving evidence led by the parties came to the conclusion that the employee / petitioner herein has failed to establish that his services have been terminated since 11-6-1997 by oral termination order as contended by him. The tribunal did not find any merit in the appeal and as such dismissed the same by judgment and order dt. 18-10-2001. Judgment and order passed by the school tribunal is subjected to challenge in the instant petition. 5 4 This court after considering the contentions raised by the contesting parties admitted the petition and while considering the application for grant of interim relief, this court directed thus : . “In the event the management wants to fill up the post to which the petitioner was appointed, the management shall first appoint the petitioner before appointing anybody else to that post. If the post has already been filled up, this restriction, however, shall not apply to the appointments which are made prior to the order.” . Interim order was passed by this court on 19-4-2002. Petitioner contends that in view of the interim order passed by this court, he is taken back in service and his services have been approved by the Deputy Director of Education. Management has controverted the contentions raised in that behalf contending that the employee had extended pressure by proceeding to observe indefinite hunger strike and compelled the authority i.e. Deputy Director to accord approval. Infact, the institution has not issued any order of continuation / appointment. The question of issuing order of appointment or continuation in terms of the interim order passed by the court would arise only if the management decides to fill up the post. The post occupied by the petitioner was never filled in. As such, there was no warrant to continue his services. 6 5 The basic issue raised in the petition is that the post occupied by the petitioner is earmarked for Scheduled Tribe category. It is contended that there is backlog of the concerned reserved category and as such, advertisement which was published in the year 1995 was for filling the vacancy from amongst the said category. As the petitioner belongs to open category, he was considered for appointment only for one academic year. It is brought to the notice by the respondents that approval accorded by the Education Officer for appointment of the petitioner is for one academic year i.e. 1995-1996. So far as approval for the year 1996-1997 is concerned, the petitioner has been granted approval on clock hour basis. The Education Officer while issuing the order according approval has specified that the post occupied by the petitioner is earmarked for reserved category and the approval is being accorded subject to filling up of backlog during the next academic year. Thus, it is contended that the orders of approval accorded by the Education Officer as well as the copy of roaster placed on record would make it clear that the post against which appointment of petitioner was made is earmarked for reserved category. Petitioner contends that the order of appointment does not mention that the appointment is as against reserved vacancy. Petitioner also places reliance 7 on the order of appointment issued for academic year 1996-1997 which mentions that the appointment is of permanent nature. Reliance is also placed on the resolution adopted by the Managing Committee in that regard. Management, however, has disputed the correctness of order of appointment annexed to the petition as well as the resolution in question. Management places reliance on the orders of appointment which are placed on record before the tribunal. However, order for the academic year 1995-1996 records date of issue as 10-6-1995 whereas it makes reference to the application tendered by the petitioner on 11-6-1995. There can be no appointment to the post prior to tendering of application by the employee. Order of appointment annexed by the petitioner on page no. 15 of the petition also does not bear date. Same is the case in respect of the order of appointment alleged to have been issued for the academic year 1996-1997 by the management. It appears that the management has placed on record copy of the appointment order dt. 11-6-1996 before the tribunal. Said order also refers to the application tendered by the petitioner on 12-6-1996 which date also falls after the date of issuance of the order. Copy of the order in respect of continuation, placed on record by the petitioner at page 16 of the petition also does not bear date. Thus, there appears discrepancies in the orders of appointment on which reliances is placed by 8 both petitioner and the respondents. The vital question that is required to be decided is as to whether the post against which appointment is made is earmarked for reserved category. Respondent has placed on record copy of the roaster verified by B.C. Cell wherein it has been noted that there is backlog of three seats from amongst Scheduled Tribe category for the year 1995. Petitioner, however, controverts these contentions. 6 It is also worth noting at this stage that during continuance of the appeal before the tribunal, writ petition was tendered by the petitioner in this court bearing Writ Petition No. 298/1998. Prayer was made in the petition seeking cancellation of approval granted to one Mr. R.P. Waghmare who was newly appointed candidate by the institution. Petitioner / employee also claimed salary for the period during which he served the institution. Question in respect of reservation of post was also raised in the petition. This court called for the report from the Education Officer who reported that the post occupied by the petitioner cannot be said to have been earmarked for reserved category. This report was objected to by the respondent / management. It was contended that it is for the B.C. Cell and the Deputy Director to verify and report as regards the occurrence of vacancy or maintenance and observance of the roaster. This court while disposing of 9 the petition has observed that the court does not wish to enter into the controversy as the issue is covered by the appeal pending before the school tribunal. It was expected of the school tribunal to deal with the issue and record finding in that regard. This court, however, did not express any opinion as regards the contention raised by the employee / petitioner that the seat is unreserved one and the point was left open for consideration by the tribunal. The only question that was required to be dealt with by the tribunal was as to whether the seat occupied by the petitioner / employee was earmarked for reserved category and whether the institution has fulfilled the backlog or there were still unfilled vacancies of the reserved category. The school tribunal was expected to consider the issue on reference to the documents namely advertisement, orders of appointment, roaster verified by the competent authority etc. It does transpire on perusal of the roaster placed on record which is verified by the B.C. Cell that there are unfilled vacancies belonging to the reserved category. Although the advertisement on which reliance is placed does not specifically make it clear that the posts are earmarked for reserved category, however, it is made clear in the advertisement itself that in the event of unavailability of the candidates belonging to the reserved category, the case of candidates belonging to open category would be considered. Thus, thereby meaning that the posts 10 are required to be filled in from amongst reserved category candidates. These aspects were required to be gone into by the tribunal. However, on perusal of the judgment, I do not find that the tribunal has framed questions on the basis of the contradictory contentions raised by the parties. It was necessary for the tribunal to advert to the specific contentions raised by the petitioner / employee which have been controverted by the employer as regards the post having been earmarked for reserved category, and record finding thereon. It was also incumbent upon the tribunal in view of the observations made by this court while disposing of Writ Petition no. 298/1998 to deal with the issue in respect of reservation of the post. The report of the Education Officer notes that the post occupied by the petitioner is unreserved one whereas the copy of roaster relied upon by the respondent which has been verified by the B.C. Cell shows that there were vacancies earmarked for Scheduled Tribe category in the year 1995. In this situation, it was for the tribunal to deal with the aspect as to whether the appointment of the petitioner was infact as against a reserved post. Tribunal has only considered the contention of the petitioner regarding oral order of termination issued by the management on 11-6-1997. IF the post occupied by the petitioner is held to be reserved one, his continuation for two academic years would be of no consequence, but if the post occupied by 11 the petitioner is held to be unreserved one, then it is to be seen whether the petitioner gets status of the permanent employee on account of his continuance for two years during the years 1995-1997. The school tribunal in these circumstances is expected to decide as to whether the appointment of the petitioner in the year 1995 to the post of lecturer was infact as against the seat earmarked for reserved category candidate. The tribunal is also required to go into the aspect as to whether the appointment is in consonance with the provisions of MEPS Act and if the appointment is held to be as against clear vacancy, whether his continuance for a period of two years would entitle him to claim permanent status. The tribunal on consideration of these issues shall have to decide the validity of the action of alleged termination taken up by the management. In these view of the matter, therefore, the impugned order passed by the tribunal on 18-12-2001 needs to be quashed and set aside and the matter is required to be remitted back to the school tribunal for consideration of the issues in consonance with the discussion made in the above referred paragraphs in this judgment. 7 So far as continuation of the petitioner on the post of lecturer and approval accorded by the Deputy Director of Education on 30-8-2002 is 12 concerned, contention raised by the respondents needs serious consideration. The order of approval makes mention of the order dt. 19-4-2002 issued by this court. This court while issuing interim order has merely directed the management that in the event the management desires to fill up the post which was occupied by the petitioner, the management shall first appoint him before making appointment of anybody else. It is the contention of the management that no appointment to the post was ever made. This contention has been controverted by the petitioner / employee by contending that one employee by name R.R. Patil was transferred and his transfer was approved by the Education Officer. Infact, there was no order appointing the petitioner to the post in terms of the interim order passed by this court. Prima facie, in these circumstances, approval accorded by the Education Officer is by mis-interpreting the interim order passed by this court and without there being any order of appointment or continuation issued in favour of the petitioner. Petitioner as well as the Deputy Director of Education failed to place on record any order issued by the management directing continuation of the petitioner on the post. In these circumstances, further continuation of the petitioner would be subject to the decision in the appeal. 13 8 Rule is accordingly made absolute. Considering the fact that the impugned order of oral termination is allegedly issued in the year 1997, the tribunal is directed to decide the appeal after extending an opportunity of hearing to both the parties as expeditiously as possible preferably within six months from today. ( R. M. BORDE, J.) dyb/office/wp352.02.odt