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CASE NO.: Appeal (civil)  4627 of 2007

PETITIONER: Asha Shamkumar Patil                                                    

RESPONDENT: Sadhana Rajan Kamble & Ors

DATE OF JUDGMENT: 03/10/2007

BENCH: Tarun Chatterjee & P.Sathasivam

JUDGMENT: JUDGMENT O R D E R (Arising out of SLP)No.13837 of 2006)

TARUN CHATTERJEE, J.

1.      Leave granted.        2.      In this appeal, the appellant questions the correctness of  the judgment and order dated 7th March, 2006 passed by a  Division Bench of the Bombay High Court in Writ Petition  No.5652 of 2003 by which the High Court had allowed the writ  petition filed by the respondent No.1 challenging the  appointment of the appellant as a permanent teacher of     Dr.  Babasaheb Ambedkar Mahavidyalaya, Peth Vadgaon, Dist.  Kolhapur.

3.      The appellant was initially appointed as a Full-Time  teacher in Hindi by an order of appointment dated 10th of July,  1986 on a temporary basis for a period of one year. The  appointment continued, since then, every year on the same  terms and conditions. On 27th of June, 1991, an advertisement  in a Daily Newspaper was published by Jai Prakash Education  Society, respondent No.2 herein, advertising three posts,  including the post of a teacher in Hindi. A bare perusal of the  advertisement would show that all the three posts advertised  were reserved for candidates belonging to Scheduled Tribe/D.T  and N.T. categories. The appellant was from the general  category. Nevertheless, by an order dated 16th of July, 1991,  she was appointed a full time teacher in Hindi to the aforesaid  post reserved for Scheduled Tribe/D.T. and N.T. category  candidates. The writ petitioner-respondent No.1 herein, also  applied for appointment to the said post of a teacher in Hindi on  the basis of the advertisement, as indicated hereinabove. The  respondent No.1 was a scheduled caste candidate, which is not  in dispute. However, she was appointed, by an order dated 16th  of July, 1991, as a part time Hindi teacher. 4.      The respondent No. 1, initially, challenged the  appointment of the appellant and also her non-selection as a  full time teacher, by filing an appeal before the School Tribunal,  Kolhapur, Maharashtra, which was dismissed, inter alia, on the  ground of limitation and jurisdiction. This order of the School  Tribunal was challenged by the respondent No. 1 by way of a  writ petition, which was, however, withdrawn by her on           3rd  of September, 2002. Subsequent to the withdrawal of appeal,  the respondent No. 1 challenged her non-selection by filing a  Writ Petition No. 5652 of 2003 for declaring her as a full time  teacher in Hindi on a permanent post from 16th of July, 1991

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and for quashing the appointment of the appellant as a full time  teacher in Hindi. By the impugned order, a division bench of the  High Court allowed the same and made the following directions: \023With these observations, we allow this petition and direct  respondent Nos.1 to 3 to reinstate the petitioner as a full  time Hindi teacher in the respondent No.2 College. It is  further directed that the petitioner\022s services shall be  treated as a full time Hindi teacher from the date of her  first appointment. However, considering the facts and  circumstances, while granting continuity in service, we  direct respondent No.2 to pay all monetary benefits from  the date of filing of the petition, after deducting monetary  benefits already paid. Considering the facts and  circumstances of the case, respondent No.1 is directed to  pay to the petitioner the difference of pay and allowances  from the date of filing of the petition i.e. 2nd May, 2003 till  date\005\024

5.      Feeling aggrieved, the appellant has filed the present  special leave petition in respect of which leave has already  been granted.  6.      Having heard the learned counsel for the parties and after  going through the relevant rules and resolutions, we are of the  view that no interference is called for in the present case.  Admittedly, the appellant is from the general category. From the  advertisement in the daily newspaper, it would be clear that the  posts for which teachers were wanted were reserved for  candidates belonging to ST/DT/NT and other backward  classes. However, it was also clarified that if candidates from  the aforesaid reserved category were not available, then,  candidates belonging to scheduled caste would be considered.  In this connection, we may also refer to Rule 9(a) of the  Maharashtra Employees of Private Schools, 1981, which reads  as follows: \023Rule 9(a) \026 In case it is not possible to fill in the teaching  post for which a vacancy is reserved for a person  belonging to a particular category of Backward Classes,  the post may be filled in by selecting a candidate from the  other remaining categories in the order specified in sub- rule (7) and if no person from any of the categories is  available, the post may be filled in temporarily on an year  to year basis by a candidate not belonging to the  Backward Classes.  A plain reading of Rule 9(a), which deals with  appointment of staff of a school, would show that in case  it is not possible to fill in the teaching post for which a  vacancy is reserved for a person belonging to a particular  category of candidates, the post may be filled in by  selecting a candidate from the other remaining categories  in the order specified in sub-rule (7) and if no person from  any of the categories is available, the post may be filled in  temporarily on an year to year basis by a candidate not  belonging to the Backward classes. (Emphasis supplied)

7.      From the above, it is, therefore, clear that the post may be  filled in by a candidate belonging to the other remaining  categories if no person is available from ST/DT or NT  categories. If no person is available from any of the  categories, then, the said post can be filled in temporarily  on a year to year basis by a candidate not belonging to  the classes of candidates mentioned in Rule 9(a). Here, in  the present case, the appellant was appointed on a  permanent status as a teacher in the said school, which

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under Rule 9(a) is not permissible.  8.      In this case, it is not in dispute that the respondent No.1  applied on the basis of the advertisement and prayed for her  appointment as a Full-Time Hindi teacher. It is also not in  dispute that the respondent No.1 is a scheduled caste  candidate. Both the appellant and respondent No.1 had applied  in terms of the advertisement dated 27th June, 1991 for the post  of Full-Time Hindi teacher in the Junior College. Since the  respondent No.1 was a scheduled caste and the post in  question was reserved for ST/DT/NT candidates and in case  not available, a scheduled caste candidate could be selected,  the respondent No. 1 only was entitled to be appointed in the  said reserved category and not the appellant. At the risk of  repetition, we may say that the appellant was neither a  scheduled tribe nor a scheduled caste candidate, whereas the  respondent No.1, admittedly, was a scheduled caste candidate,  as noted herein earlier. It is no ground that only because the  appellant was working as a Hindi teacher with temporary status,  she could become eligible to be appointed permanently  because she had worked on the said post temporarily for a  considerable period of time. We are of the view that the  appellant cannot be permitted to get the benefit of her  continued service as a temporary teacher, when, admittedly,  the post was reserved for ST/DT and NT candidates and when  statutory rules do not permit the authorities to appoint a  candidate as a permanent teacher of the school from the  general category. Mr. Lalit, senior counsel, appearing on behalf  of the appellant however submitted that in view of the fact that  appointments of candidates in the reserved post were already  filled in and there was no vacancy in the said reserved post, it  was open for the authorities to appoint the appellant from the  general category. We are unable to accept this contention of  Mr. Lalit. As noted hereinabove, Rule 9(a) of the said rules  clearly provides that in the event, the reserved post is filled up  or candidates are not available, in that case, a general category  candidate, can be appointed purely on a temporary basis from  year to year and can not be appointed as a permanent teacher  of the school.  9.      It is true that the appellant had worked in the school since  1986, but that does not confer any power on the authorities to  appoint her permanently, when, admittedly, the post was  reserved either for a scheduled tribe or a scheduled caste  candidate. 10.     Such being the position, we are not inclined to interfere  with the order passed by the High Court and accordingly, the  appeal fails and is hereby dismissed without any order as to  costs.