1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 2038/2008 (Sou. Vaishali Anantrao Gaupal VERSUS Shri Gurukrupa Shikshan Prasarak Mandal Karanja (Lad) & others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri P.B. Patil, counsel for the petitioner. Shri Rohit Deo, counsel for the respondent no.1. Shri A.P. Tathod, counsel for the R-2 & 4. Shri Parihar, Assistant Government Pleader for the R-3. CORAM : SMT. VASANTI A. NAIK, J. DATE : DECEMBER 11, 2008. C.A. NO. 8048/2008. Heard the learned counsel for the parties. By the proposed amendment, the petitioner desires to bring certain facts and events on record. According to the petitioner, after the termination of services of the petitioner, the respondent appointed one Pravin Satishrao Soniwal as Assistant Teacher by an appointment order dated 31.01.2006 and it is necessary to grant the prayer made in the civil application as the services of the petitioner were terminated because the petitioner did not belong to the Scheduled Tribe category for which 2 the post of the Assistant Teacher was earmarked at the relevant time in the year 2003. It is submitted on behalf of the petitioner that Pravin Satishrao Soniwal also belongs to the Other Backward Classes Category and, therefore, it is necessary to amend the petition so as to bring these facts on record. The learned counsel for the respondent no.1 has supported the case of the petitioner in the Tribunal also and does not have any objection for grant of prayer made in the civil application. The learned counsel for the respondent no.2 to 4, however, strongly opposed the prayer made in the civil application. I have perused the contents of the civil application and also considered the submissions made on behalf of the parties. It is necessary to note that the impugned order is passed by the Tribunal on 07.12.2007 and the appointment of Shri Pravin Soniwal was made in January-2006. The petitioner 3 had not amended her appeal memo before the Tribunal to bring these facts on record. The petitioner had also not joined Shri Pravin Soniwal as a party to the appeal before the Tribunal. In any case, the cause of action in the appeal filed before the Tribunal has nothing to do with the appointment of Shri Pravin Soniwal on the post of Assistant Teacher in January-2006. The grant of the prayer in this civil application would create further complications. The prayer made in this civil application is, therefore, rejected. The civil application is dismissed and disposed of. JUDGE APTE 4 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 2038/2008 (Sou. Vaishali Anantrao Gaupal VERSUS Shri Gurukrupa Shikshan Prasarak Mandal Karanja (Lad) & others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri P.B. Patil, counsel for the petitioner. Shri Rohit Deo, counsel for the respondent no.1. Shri A.P. Tathod, counsel for the R-2 & 4. Shri Parihar, Assistant Government Pleader for the R-3. CORAM : SMT. VASANTI A. NAIK, J. DATE : DECEMBER 11, 2008. By this petition, the petitioner impugns the judgment passed by the Presiding Officer School Tribunal, Amravati on 07.12.2007 in Appeal No.49/2004 dismissing the appeal filed by the petitioner under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. The petitioner had challenged the order/ notice dated 02.07.2004 terminating the services of the petitioner from the post of Assistant Teacher and had further sought reinstatement in service with continuity in service and back wages. It was the case 5 of the petitioner that she was appointed as an Assistant Teacher in Biology on 05.08.2003 on probation of two years. Her appointment was made in pursuance of an advertisement dated 24.07.2003. The post was reserved for a Scheduled Tribe candidate. It is the case of the petitioner that the Scheduled Tribe candidates were not available and, hence, the petitioner, who belonged to Other Backward Classes Category was appointed on the said post, on probation. It was stated in the appeal memo that the respondent no.3, the Education Officer, had neither accorded nor refused the approval to the appointment of the petitioner on the post of the Assistant Teacher. It appears that two persons were claiming to be the Secretary of respondent no.1 Society. The society had filed a written statement through the secretary Shri H.M. Bonde. Thereafter, the petitioner had impleaded the President of the Society as 6 respondent no.4 to the appeal. Shri Gavhale and Shri Ingole claimed to be the President of the respondent no.1 Society. Mrs.Ingole, who claimed to be the Secretary of the Society and Shri Panjabrao Ingole, who claimed to be the President of the Society filed their written statement, denying the claim of the petitioner, whereas, Shri Gavhale and Shri Bonde, who claimed to be the President and the Secretary of the Society, supported the case of the petitioner. It appears that the appointment order dated 05.08.2003 was signed by the Secretary of the Society, namely Shri Bonde whereas, Shri Ingole, the President of the Society and the Headmaster of the society had relied on yet another appointment order dated 04.08.2003 which showed that the appointment of the petitioner was only for one academic session. After considering the record and the submissions made on behalf of the parties, the Presiding Officer, School Tribunal Amravati held that 7 the appointment of the petitioner was purely on temporary basis and for an academic session only. The Tribunal held that Shri Bonde was not authorised to issue the appointment order as his powers as a Secretary were withdrawn with effect from 02.07.2004. The Tribunal further held that there was non-compliance of the provisions of Rule 9(8) of the Rules of 1981 as the advertisement was not published in a newspaper having wide circulation in the region and the post was also not notified in the Office of the Employment Exchange as well as Social Welfare Office. The Tribunal held that the Education Officer had also not granted approval to the appointment of the appellant. The Tribunal found that the services of the petitioner were not terminated on 01.07.2004 as alleged by her but, her services had automatically come to an end on 30.04.2004. The judgment dated 07.12.2007 is impugned in the instant petition. 8 I have considered the submissions made on behalf of the parties and have also perused the impugned judgment dated 07.12.2007. It is submitted on behalf of the petitioner as well as the respondent no.1 that the Tribunal was not justified in making the unwarranted observations against the Secretary Shri H.M. Bonde and holding that the body of the Society headed by Shri Gavhale and Shri Bonde was not in office at the relevant time. It is, however, not necessary to deal with this aspect of the matter while considering the correctness of the judgment passed by the School Tribunal on 07.12.2007 as the petitioner has failed to prove that her appointment was made in accordance with the provisions of the Act of 1977 and the Rules framed thereunder. The petitioner was appointed on a post earmarked for the Scheduled Tribe Category, though she belonged to the Other Backward Classes Category without following the procedure under Sub- Rules 8 and 9 of Rule 9 of the Rules of 1981. 9 No fault can be found with the findings recorded by the Tribunal that there was non- compliance of the provisions of Rule 9(8) of the Rules of 1981 as the advertisement was not published in a newspaper which was widely circulated in the region and the post was also not notified in the Office of Employment Exchange, Social Welfare Office and the other Offices mentioned in Sub-Rule 8. Since the petitioner did not belong to the Scheduled Tribe Category, her appointment could have been made on purely temporary basis if the formalities prescribed by the provisions of the sub-Rule 8 were not followed. The petitioner has not stated in the appeal memo that there was no candidate from the other remaining categories in the order specified in sub-Rule 7 of Rule 9 and since no person from any of the other categories was available, the petitioner was appointed on a probation of two years. 10 The appointment order clearly shows that it was signed by Shri Bonde, who claimed to be the Secretary of the Society and was not signed by the Chief Executive Officer/Headmaster or the Assistant Headmaster of the School or the Headmaster and the Secretary of the School Committee as required under the provisions of Rule 9(5) of the Rules of 1981. Section 5 provides that the order of appointment shall be drawn up in the form prescribed in that behalf and shall state the period of appointment of the person. In the instant case, the appointment order was not in conformity with the provisions of Section 5(5) of the Act of 1971 and Rule 9(2) and (5) of the Rules of 1981. This Court has, in the judgment reported in 2002(4) Mh.L.J. 225 held that an appointment order which is not issued and signed by the Headmaster/Secretary of the School Committee, cannot be considered as an appointment under Rules 11 9(2) and (5) and Schedule D appended thereto and no legal right can be canvassed on the basis of such appointment order. Since the appointment of the petitioner is not in accordance with the provisions of Section 5(5) of the Act and Rules 9(2) and (5) of the Rules, the petitioner is not entitled to base her claim on the same. The petitioner admittedly belongs to the Other Backward Classes Category and the said post was earmarked for the Scheduled Tribe Category. The Tribunal has recorded a finding that the procedure prescribed by Sub Rule 8 of Rule 9 was not followed before making the appointment of the petitioner. No fault can, therefore, be found with the judgment passed by the Tribunal. The appeal of the petitioner could have been dismissed on these grounds alone. 12 The other observations made by the Tribunal about the absence of powers with Shri H.M. Bonde to act as the Secretary were not warranted in the facts and circumstances of the case as the change reports filed by both the parties are pending before the Assistant Charity Commissioner. These observations can, therefore, be ignored. The petition fails and is dismissed with no order as to costs. JUDGE APTE