:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 203 OF 1993 Shri Krishna Dnyandeo Lad C/o Shri Belgade, Near Post Office, At and P.O. Rahimatpur Taluka Koregaon, District Satara. ..Petitioner Vs. 1. Chairman Rahmatpur Panchkrushi Shishan Mandal, Shri P.N. alias Babasaheb Post Rahimatpur, Tal. Koregaon, Dist.Satara. 2. Shri Rajendra V. Gaikwad at Junior College of Arts and Commerce, Post Rahimatpur, Tal. Koregaon, Dist. Satara. 3. Shri R.A. Jadhav c/o Junior College of Arts & Commerce, At Post Rahimatpur, Tal.Koregaon, Dist. Satara. 4. The Presiding Officer, Schoo; Tribunal, Pune ..Respondents Mr. R.G. Ketkar for the petitioner. Mr. Vijay Patil for respondent no.1. CORAM: CORAM: CORAM: B.H. B.H. B.H. MARLAPALLE, J. MARLAPALLE, J. MARLAPALLE, J. Date Date Date : January 11, 2008. : January 11, 2008. : January 11, 2008. ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: 1. This petition impugns the common Judgment and :2: Order dated 2/9/1992 rendered by the School Tribunal, Pune Region, Pune thereby dismissing Appeal No.9 of 1991 and Appeal No. 27 of 1991 filed by the present petitioner. The petitioner holds the qualification of M.A.(II class) with Diploma in Higher Education. He was working as an Assistant Teacher and when he came across the advertisement released by the respondent no.1-society for the post of Lecturer in English in its Junior College of Arts, Commerce and Science at Rahimatpur, Taluka Koregaon, District Satara, he applied for the same. Though all the posts so advertised were reserved, the petitioner was appointed on temporary basis for the academic year 1986-87 as per the appointment order dated Nil and with effect from 11/6/1986 in the payscale of Rs.600-30-1050 and at the end of the academic year he was given notice regarding the completion of his tenure. In this fashion he continued after the academic year 1989-90 and in each year temporary appointed for one academic year. In the academic year 1990-91 he was appointed on part time basis as per the order dated 12/6/1990 and, therefore, he challenged the said order by filing Appeal No.9 of 1991 and alleged that the said order was nothing short but reduction in rank. At the end :3: of academic year 1990-91 he was again discontinued as per the order dated 1/4/1991. Consequently, he filed Appeal No.27/91 and challenged the said termination on the ground that he had worked continuously for more than six years against a permanent full time vacancy and, therefore, he had attained the status of a deemed permanent Assistant Teacher/Junior Lecturer. 2. The respondent-management appeared before the School Tribunal and filed Written Statement in both the appeals opposing the same. It pointed out that from the academic year 1986-87 onwards till the academic year 1990-91 the petitioner’s appointment was made against a reserved vacancy and either it was so specifically mentioned in the advertisement itself or the appointment order issued to the petitioner. The petitioner had accepted such appointments with his eyes open and every time the advertisement released, he had applied in response to the same. The management further contended that at no point of time the petitioner was appointed on probation as contemplated under Section 5 of the M.E.P.S. Act, 1977 and, therefore, there is no question of his :4: attaining the status of a deemed permanent teacher. It was further stated that there was no case of termination of service, but it was, in fact, the end of the tenure by efflux of time. 3. After hearing both the sides and considering the documentary record placed before it, the Tribunal accepted the management’s contention that the petitioner was appointed on temporary basis and against a reserved post every year. It was the contention of the petitioner in Appeal No. 9 of 1991 that as a full time teacher he was drawing the salary of about Rs.3000/- per month in the academic year 1989-90 (basic salary Rs.2180/- D.A. Rs.741 and Allowance Rs.90). He alleged that on account of part time appointment with effect from 16/9/1990 he would be eligible to receive the salary of Rs.1380/- per month and thus there was a substantial loss caused to him in his monthly salary and this was nothing short of reduction in rank and, therefore, he claimed that on 16/9/1990 he was issued a back dated order dated 12/6/1990 which was required to be set aside. :5: 4. From the record placed before the School Tribunal, there is no doubt that in the academic year 1986-87 till the academic year 1990-91 the post of Lecturer in English was reserved and the appointment orders issued to the petitioner for the academic year 1988-89 onwards till the academic year 1989-90 clearly indicated that the appointment was against a reserved post. It is further clear from the record that for the academic year 1989-90 the advertisement published indicated the intention of the management to recruit two Lecturers in English subject, one on full time basis and other one on part time basis. The management placed on record before the School Tribunal that the full time vacancy for the post of Lecturer in English came to be filled in in the academic year 1990-91 when the present respondent no.2 was appointed and that is the reason why he was impleaded as respondent no.2 in Appeal No. 9 of 1991 as well as in Appeal No.27 of 1991. It appears the present respondent no.2 had subsequently resigned and in his place the respondent no.3 Shri R.A. Jadhav was appointed. The School Tribunal, therefore, held that there was no reduction in rank and the advertisement published on 16/7/1990 clearly indicated that there :6: was one post of Lecturer on part time basis for the subject of English and the petitioner had applied in response to the same. Consequently, he was issued the appointment order dated 12/6/1990 which he alleged that it was back dated and it was received by him on 26/9/1990. Though the said contention appears to be correct, but the fact remains that the post was part time and it was a reserved post. The School Tribunal was, therefore, satisfied that right from the academic year 1986-87 till the academic year 1990-91 the petitioner was appointed against a reserved post on year to year basis and every time the management had published an advertisement. However, in the year 1990-91 the full time post reserved was filled in by the appointment of respondent no.2 and, therefore, the petitioner came to be appointed in the said academic year on part time basis against a vacant reserved post for ST. Even if it is presumed that in the academic year 1990-91 there could not have been a reserved vacancy on part time basis, the fact remains that in all earlier academic years whenever the petitioner was appointed on full time basis, the said appointment was against a reserved post and the said post was filled in by the appointment of respondent no.2 in June 1990. :7: 5. Mr. Ketkar the learned counsel for the petitioner referred to the scheme of M.E.P.S. Rules, 1981 framed under Section 4 of the M.E.P.S. Act, 1977 and submitted that there could not have been a post reserved in the subject of English and for which the petitioner was appointed. He further submitted that in any case the total reservation could not be 34% and the reservation for ST, SC and NT would not exceed 24%. Mr. Ketkar submitted that before the School Tribunal the management failed to place any record which would indicate that the reservation quota claimed to be vacant was within 34% or 24% as the case may be. He further alleged that the reservation roster which was submitted before the School Tribunal suffered from irregularities and, therefore, it could not be relied upon. . If we go through the appeal memos in both the appeals, the petitioner never averred on these lines. His only emphasis was that he was appointed for more than five years against a permanent vacancy and the back dated order dated 12/6/1990 was in breach of the principles of natural justice. When the notice :8: of termination was issued on 1/4/1992 he claimed that the same was illegal as he had attained the status of permanency within the meaning of Section 5(2) of the Act and, therefore, he could not have been removed in such a manner. 6. It is clear from the records, even otherwise, that the petitioner did not implead the Education Officer, Zilla Parishad, Satara or Deputy Director of Education, Pune Region who could have been the competent officer to appear before the School Tribunal and file reply dealing with the issue of reservation for the post of Lecturer in the subject of English in the Junior College. But the petitioner chose not to implead the said officer as an additional respondent in the appeal before the School Tribunal. Be that as it may, the fact remains that the petitioner with his open eyes every time read the advertisement released by the respondent no.1, he applied in response to the same and accepted the appointment orders on temporary basis against a reserved post and on year to year basis. He could not be allowed to turn back and say that the reservations claimed by the management was :9: fictitious or it was only camouflage to continue him on temporary basis. It would be too late in the day to take up such an argument especially when all along within a period of six years such a ground was never agitated by any representation to any of the officers like the Education Officer or the Deputy Director of Education. 7. Admittedly, at no point of time the petitioner was appointed permanently and he claims to have attained the status of a deemed permanency because he worked from the academic year 1986-87 to 1990-91 continuously and, therefore, he ought to be deemed to be a permanent teacher. The scheme of Section 5 of the Act does not give any sanctity to such submission. It is also to be noted at this stage that the issue of approval having been granted to the appointment of the petitioner either on temporary basis or otherwise could not be highlighted before the School Tribunal though the management contended that the said appointment was approved on year to year basis. Notwithstanding the said position, the law laid down by the Apex Court on the interpretation of Section 5 :10: of the M.E.P.S. Act, 1977 rebels the submission made by the petitioner in support of his claim of having attained the status of a deemed permanent teacher. Mr. Patil, therefore, rightly relied upon the decisions of the Supreme Court in the case of Hindustan Education Society and anr. vs. Sk. Kaleem Sk. Gulam Nabi & ors. [1998(2) Bom.C.R. 146] [1998(2) Bom.C.R. 146] [1998(2) Bom.C.R. 146] and Bharatiya Gramin Punarrachana Sanstha vs. Vijay Kumar and ors. [2003 (3) Bom.C.R.191] [2003 (3) Bom.C.R.191] [2003 (3) Bom.C.R.191]. In the first case the appointments were made on temporary basis against a clear vacancy for one academic year and it was mentioned that the same would expire at the end of the academic year. Their Lordships observed in Hindustan Education Society’s case as under:- "....Obviously, the approval given by the competent authority was for that temporary appointment. As regards permanent appointments, they are regulated by sub-sections (1) and (2) of section 5 of the Act according to which the Management shall, as soon as possible, fill up, in the manner prescribed, every permanent vacancy in a private school by appointment of a person duly :11: qualified to fill in such vacancy. Every person so appointed shall be put on probation for a period of two years subject to the provisions of sub-sections (4) and (5). He shall, on completion of the probation period of two years, be confirmed." . The Supreme Court concluded that the teacher could not claim to have attained the status of permanency. 8. Similar issue again fell for consideration in the case of Bharatiya Gramin Punarrachana Sanstha. In the said case, the teacher was appointed on 22/6/1996 for a period of two years from 24/6/1996 to 23/6/1998 and the said appointed was approved by the Deputy Director of Education, Aurangabad initially for the academic year 1996-97. As no approval was forthcoming for the next academic year 1997-98 and the management was not in a position to pay the salary to the teacher, his services were terminated by the management on 17/9/1997. The teacher, therefore, approached the School Tribunal and in the meanwhile on 2/2/1998 the Deputy Director of Education approved the :12: appointment for the academic year 1997-98. The Tribunal by its order dated 6/1/2001 had directed reinstatement of the teacher with 75% back wages and consequential benefits. Challenge before the High Court had failed in Writ Petition No.697 of 2001 before the Aurangabad Bench of this court. The management contended before the Supreme Court that the appointment was against a post made for Scheduled Tribe candidate according to the roster and by mistake it was shown as reserved for a Scheduled Caste candidate and, therefore, the appointed teacher could not be continued in the said post when a Scheduled Tribe candidate came to be appointed in the said post. The Tribunal on perusal of the roster had recorded a finding that it indicated the reservation of vacancy for a Scheduled Tribe candidate but the it did not act upon it as the original roster was not produced. The management, therefore, contended that the appointment was purely on temporary basis and an undertaking was also furnished by the teacher that the said appointment would be subject to the approval to be granted by the Education Officer. The Supreme Court considered the scheme of Section 5 of the M.E.P.S. Act and noted that the termination order was dated :13: 17/9/1997 i.e. before the expiry of the probation period and observed as under:- "....It is thus clear that only when an employee has competed successfully the probation period of two years, sub-section (2) directs that he shall be deemed to have been confirmed. In our view, this provision does not help the first respondent. First, because the services were terminated before completion of two years and his case does not fall within sub-section (4); secondly, admittedly the first respondent was appointed only for the period of two academic years 1996-97 and 1997-98 and was not put on probation. The order of appointment specifically mentions that after the expiry of the said period of two years the services of the first respondent would come to an end without any notice. Even the undertaking given by the first respondent recites that on relieving him on the expiry of the period of academic year 1997-98 he shall not claim any right on the said post...." :14: 9. In the premises it has to be, therefore, confirmed that the petitioner would not claim the status of permanent teacher as he was never appointed on probation despite the fact that he worked continuously for six academic years and at the end of every academic year his tenure of employment had come to an end by efflux of time. The reasoning set out by the School Tribunal for dismissing both the appeals, in view of the law discussed above, requires to be confirmed and the impugned order does not call for interference under Article 227 of the Constitution. Hence, the petition fails and the same is hereby dismissed. No costs. 10. Mr. Patil, the learned counsel for the respondent-managment has assured this court that in case there is a vacancy of Assistant Teacher in the secondary school or Lecturer in the Junior College run by the respondent no.1-society in the coming academic year or as at present even on temporary basis, the management will consider appointing the petitioner who has about six years of experience with the same management and in case such a vacancy is available on :15: permanent basis, undoubtedly the petitioner would be eligible to apply for the same. Needless to mention, during such selection process, the management will give preference to the petitioner having regards to his earlier experience. (B.H. (B.H. (B.H. Marlapalle,J.) Marlapalle,J.) Marlapalle,J.)