1 lpa-6-11.sxw dgm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO. 6 OF 2011 IN WRIT PETITION NO.3508 OF 2001 Rajendra Dinkar Chavan .... Appellant vs Mudhaidevi Shikshan Prasarak Mandal through President and ors. .... Respondents Mr. Uday P. Warunjikar for the Appellant. Mr. A. M. Joshi for respondent no.1. Mr. V.S. Gokhale, AGP for respondents 2 to 4. Mr. S.P. Kadam for respondent no.5. CORAM: D. K. DESHMUKH & ANOOP V. MOHTA, JJ. DATE : September 08, 2011 P.C.: By this Appeal, the Appellant challenges the order passed by a learned Single Judge in Writ Petition No.3508/2001 dated 26 November 2010. By that order, the learned Single Judge has allowed the writ petition which was filed by Respondent no.1 and has set aside 2 lpa-6-11.sxw the order passed by the School Tribunal. The relevant facts are that the Petitioner was appointed as a lecturer in Junior College of the Respondents in the year 1993. It appears that his services were thereafter terminated. That termination was challenged before the School Tribunal. The School Tribunal set aside the termination order and reinstated him in service. The management challenged that order before this Court by filing a writ petition. The Division Bench of this Court by order dated 12 July 1996 rejected that writ petition. The management, it appears that thereafter in the year 1997 again terminated the services of the Petitioner. The management found that the Petitioner was appointed in the year 1993 against a seat reserved for Scheduled Tribe candidate on the basis of his claim that he belongs to a Nomadic Tribe. He claimed that belongs to “Gadi Lohar” tribe which is a Nomadic Tribe. The management found that his claim that he belongs to Gadi Lohar tribe is not valid and therefore his services were terminated. That order was challenged before the School Tribunal. The School Tribunal recorded a finding that the Petitioner was appointed to the post of lecturer in the year 1993 because he claimed that he belongs to Nomadic Tribe. The School Tribunal, however, set aside the termination order, allowed the Appeal and reinstated the Appellant in service. That order was challenged before 3 lpa-6-11.sxw a learned Single Judge by the management. The petition of the management has been allowed and the order of the School Tribunal has been set aside. The result is that the order of the management terminating the services of the Petitioner has been confirmed. The learned counsel appearing for the Petitioner submitted firstly that this Court in its order dated 12 July 1996 has held that the Petitioner was appointed against “a clear vacant post with effect from 5 July 1993”. Therefore, the finding of the learned Single Judge that the Petitioner was appointed against a reserved post is erroneous. In our opinion this submission has no substance because what the Division Bench meant is that the Petitioner was appointed against a clear vacancy in the sense that it was not a leave vacancy or a vacancy against which somebody had a lien. In fact in the Appeal filed by the Appellant before the School Tribunal, the School Tribunal has recorded a finding that in the year 1993 the Petitioner was appointed against a seat which was reserved for Scheduled Tribe, because a candidate belonging to Scheduled Tribe was not available and the Petitioner claimed that he belongs to Nomadic Tribe he was appointed. Thus, it is clear that the Petitioner was appointed against a seat reserved for the Scheduled Tribe because he claimed that he belongs to Nomadic Tribe and because a candidate belonging to Scheduled Tribe was not 4 lpa-6-11.sxw available. There is no dispute that the claim of the Petitioner that he belongs to Gadi Lohar tribe which was and is a Nomadic Tribe, has been held to be invalid by the Scrutiny Committee finally. The learned counsel appearing for the Appellant submitted that because Section 5 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 lays down that if a person is appointed against a clear vacancy, on his completion of two years service in the post he will be deemed to be permanent, the services of the Petitioner could not have been terminated by the management after the Petitioner completed two years of service without holding an enquiry and the services could have been terminated only for misconduct. In our opinion, the submission has no substance because the Petitioner was appointed on the basis of his claim that he belongs to Nomadic Tribe. Therefore, unless and until the claim of the Petitioner that he belongs to a Nomadic Tribe is found to be valid, there is no question of the Petitioner attaining the status of a permanent employee. It is only a person who has been validly appointed against a clear vacancy can attain permanency on completing two years of service. The appointment of the Petitioner would become valid only on a finding that he belongs to Gadi Lohar, a Nomadic tribe. It appears that reliance was placed on a subsequent Government Resolution dated 1 5 lpa-6-11.sxw March 2006 which included the caste “Lohar” in the list of Nomadic Tribe and the fact that the Petitioner had obtained a certificate that he belongs to Lohar Nomadic Tribe. Now the very conduct of the Petitioner of obtaining a certificate that he belongs to Lohar tribe belies his case that his caste is Gadi Lohar. Gadi Lohar and Lohar are different tribes. Therefore, the conduct of the Petitioner of obtaining caste certificate that he belongs to Lohar tribe belies his claim which he made in the year 1993 to secure appointment with the management that he belongs to Gadi Lohar tribe. 2 Taking overall view of the matter, therefore, in our opinion, as it is now finally settled that the Petitioner does not belong to Gadi Lohar tribe which in the year 1993 was the Nomadic Tribe, the appointment of the Petitioner on the basis that the Petitioner belongs to Nomadic Tribe has been rightly terminated by the management. We see no substance in the Appeal. The Appeal is rejected. No costs. (ANOOP V. MOHTA, J.) (D. K. DESHMUKH,J.)