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CASE NO.: Appeal (civil)  7553 of 2005

PETITIONER: Kankavali Shikshan Sanstha & Ors.                                

RESPONDENT: M.R. Gavali & Ors.                                                          

DATE OF JUDGMENT: 16/12/2005

BENCH: Ruma Pal & Dr. AR. Lakshmanan

JUDGMENT: J U D G M E N T (Arising out of S.L.P. (Civil) No. 12153 OF 2004)  

Dr. AR. Lakshmanan, J.

Leave granted. Kankavali Shikshan Sanstha and two others are the appellants in this appeal.   This appeal was filed against the judgment and final order dated 05.02.2004  passed by  the High Court of Bombay in Writ Petition No. 3000 of 2003 whereby the High Court  allowed the said writ petition of the first respondent herein - Manohar Ramchandra  Gavali by setting aside the order dated 31.03.2003 of the School Tribunal, Kolhapur  and directed that the first respondent shall be entitled to reinstatement in service with  continuity of service and back-wages.   

The short facts of the case are as follows:- Respondent No. 1 - M.R. Gavali was appointed as Assistant Teacher in the  S.M.Junior College w.e.f. 18.06.1994 on purely temporary basis for the academic year  1994-1995 i.e. for the period from 18.06.1994 to 02.05.1995 against the backlog of  SC/ST and NT category.  Clauses 2,3,7 & 8 of the appointment order read as follows:- "2. Your appointment is purely temporary for a period from 18.06.1994 to  02.05.1995 in the leave/deputation vacancy after expiry of the above period  your services shall stand terminated without any notice. OR

3. The terms of your employment and condition of service shall be as laid  down in the Maharashtra Employees of Private Schools (Conditions of  Service) Regulation Act, 1977 and the rules made thereunder.  

7. Your appointment is conditional subject to the approval of the Education  Department.

8. This post is reserved for Schedule Caste and if candidate of that category  will be available, your service will be terminated."   The Deputy Director of Education approved the said appointment by his letter of  approval dated 04.04.1995.   

The appellant-Institution sought to fill up the backlog against the reservation by  publishing advertisement in the newspapers.  However, the particular backward class  candidate was not available.  On account of non-availability of the ST reserved  category candidate, respondent No.1 - M.R. Gavali was again appointed temporarily on  08.06.1995 for the academic year 1995-96.  It was made clear that the said  appointment is liable to be terminated as and when a candidate from the backward  class is made available and that the said appointment was subject to the approval of  the Education Department.  

Respondent No.1 submitted an affidavit on 24.11.1995 stating that his  appointment in the 3rd appellant college was only till 02.05.1995 and that his  appointment is totally temporary and on the backlog of SC, ST and NT and only for the

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academic year 1995-96.  On 31.01.1996, respondent No.1 again submitted an affidavit  on a bond paper stating that the said appointment is temporary and that he will not  claim any permanent right on the said post.  On the basis of the aforesaid affidavit, the  Deputy Director of Education approved the said appointment on totally temporary basis  for the year 1995-96 due to the backlog of SC/ST candidate.  

Despite repeated efforts, due to non-availability of SC/ST reserved category  candidate, and as the said post was filled on purely temporary basis for the academic  year 1995-1996, the appellant issued a notice of termination on 26.03.1996 to   respondent No.1 terminating his services at the end of the academic year viz., from  30.04.1996.  The termination notice reads thus:- "Termination Notice Shri M.R.Gavali (M.A. B.Ed) Asst. Teacher S.M. Jr. College of Sc. & Commerce, Kankavli, Dist. Sindhudurg

Sub: Termination as Asstt. Teacher after completion of your service.

Ref-Deputy Director Kolhapur Division UM-1/KV/SM/95-96/5428-30 dt. 13.2.1996

Sir,  Your appointment was as an Asst. Teacher in S.M. Jr. College, Kankavli  against the post reserved for (S.C./S.T./N.T.).  The management made many efforts to  fill post of the said category candidate.  As per S.S. code No.9, Sub-rule No.9(1), the  post was filled as a temporary teacher only for the academic year 1995-96 and the  education department had approved the above post for only the said academic year.   As per the above reference letter your appointment is coming to a close.  So as per  this letter we intimate you that you are terminated.  (Your services are terminated).

You have to hand over all your educational matter, the library books and  intimate the office before 30.4.1996.

Sd/- Chairman School Committee   S.M. High School Kankavli Dist. Sindhudurg Place \026 Kankavli Dt. 26.3.1996"   Respondent No.3 - P.B.Lohar (respondent No.5 in the High Court) who belongs  to the OBC category and being duly qualified was transferred since 10.06.1996 in the  said vacant post as he had served in the appellant-Institution for 20 years at Secondary  School.  Being aggrieved by the order of termination dated 26.03.1996, respondent  No.1 approached the School Tribunal, Kolhapur by filing Appeal No.50 of 1996 under  Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service)  Regulation Act, 1977 (hereinafter referred to as the "M.E.P.S. Act").  The Tribunal, vide  judgment and order dated 31.03.2003, dismissed the said appeal filed by respondent  No.1 and held that in view of the documentary material placed on record, respondent  No.1 was appointed on a temporary basis and that P.B. Lohar - respondent No.3 in this  Court (respondent No.5 in the High Court) was entitled to be appointed on the said  vacant post.  Respondent No.1 challenged the order passed by the Tribunal dated  31.03.2003 in the High Court by filing a writ petition.  The High Court allowed the said  writ petition by the impugned order dated 05.02.2004 by setting aside the order dated  31.03.2003 of the School Tribunal, Kolhapur and directed that respondent No.1 shall be  entitled to reinstatement in service with continuity of service and back-wages.   Aggrieved by the order dated 05.02.2004, the appellant-Management has filed the  above appeal in this Court.   

Learned counsel appearing for the Management Mr. Shivaji M. Jadhav  submitted that the High Court has gravely erred in not considering the documentary  evidence on record which, inter alia, includes the affidavits given by respondent No.1

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himself stating that he was appointed on purely temporary basis and that he would not  claim any right of permanency on the said post.  It was further submitted that the  approval to the said appointment of respondent No.1 was given purely on temporary  basis only for the academic year 1995-96 and, therefore, respondent No.1 could not be  entitled to reinstatement by way of permanency on the said post.   

Learned counsel for respondent No.1 - Mr. M.D. Adkar submitted that the first  respondent had been appointed under the provisions of Rule 9(9)(a) since no candidate  belonging to the backward class category was available during the year 1995-96 and  that the tenure of his appointment would come to an end upon the conclusion of the  academic year upon which his services would end.  The respondent filed an appeal  under Section 9 of the M.E.P.S. Act before the School Tribunal contending that he had  completed two years of service and was entitled to the protection of having attained the  status of a permanent employee under Section 5(2) and that since the respondent  belongs to the Hindu Mali community which is recognized as an OBC he was entitled to  the benefit of Rule 9(9)(a) of the Maharashtra Employees of Private Schools Rules,  1981 (hereinafter referred to as the "M.E.P.S. Rules") and in that capacity to  permanency and continuity of service.   

On the other hand, it has been urged on behalf of the Management that the view  of the School Tribunal was correct and that the first respondent cannot be held as a  deemed permanent employee or cannot claim protection under Rule 9(9)(a) of the  M.E.P.S. Rules.

The appeal was opposed by respondent No.2 \026 the Deputy Director of  Education.  It was submitted that the appellants are bound to keep desired percentage  of backward class communities as laid down in Rule 9(7) of the M.E.P.S. Rules and  thus are duty bound to fill in the new vacancies as per backlog of OBC categories and  since the appellants have given temporary appointments for the academic year to  respondent No.1 during 1994-95, 1995-96 and thus have been accepted in writing by  respondent No.1, the provisions of Rules 9(8) and 9(9)(a) do not attract in this case.  It  was further contended that the appointment of respondent No.1 during the year 1994- 95 and 1995-96 were purely temporary and for one academic year each and that the  appointments are rather tenure appointments and as such the appointment of  respondent No.1 was rightly been terminated by the appellants by the end of the  academic year 1995-96 as per provisions of Rule 28 sub clause (1) of the M.E.P.S.  Rules.  It was further contended that since the vacancy was earmarked for reserved  category other than OBC category as there was no backlog of OBC category at the  relevant time and such as the same should not have been treated as clear vacancy for  OBC category.  On the contrary, the said vacancy should have been treated as clear  vacancy of reserved categories of which the backlog existed.  Under the circumstances,  the provisions of Section 5(2) of the M.E.P.S. Act and Rule 9(9)(a) of the M.E.P.S Rules  are not applicable in the case of respondent No.1.  It was further argued by counsel for  respondent No.2 that since the appointment of respondent No.1 was purely temporary it  has rightly been terminated as per provisions of Rule 28(1) of the M.E.P.S. Rules and  that respondent No.3 - P.B. Lohar being already in permanent service and being  eligible for appointment by transfer from secondary section to higher secondary/Junior  College Section, he came to be appointed accordingly and, therefore, the action of the  appellant is as per the rules and need be upheld.  

Rule 9(9)(a) of M.E.P.S. Rules, 1981 provides as follows:-  "9(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 a year to year basis by a candidate not belonging to the  Backward Classes."   

This rule came up for consideration before this Court in Shakuntala Ganpatsa  Shirbhate vs. Industrial Weaving Co-operative Society and Others, AIR 1994 SC  36.  That was a case where the appellant who belonged to a backward class was  appointed initially as a Teacher in biology for a period of one year.  The appointment  was thereafter extended from year to year on several occasions and the last  appointment was until further orders.  The vacancy was earmarked to a candidate

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belonging to a Nomadic Tribe.  In the absence of a candidate belonging to a Nomadic  Tribe, the appellant was appointed.  The appointment of the appellant came to be  terminated immediately upon a candidate belonging to a Nomadic Tribe becoming  available.  This Court upheld the contention of the appellant that since the appellant  was a member of one of the backward classes referred to in the rule, she was entitled  to a regular appointment in the very first year when no person belonging to Nomadic  Tribe was available.  The Court held the argument of the appellant was well founded.   The fourth respondent in this case was available for appointment later on in 1988.  This  Court noted that on the first occasion when the post was being filled up there was no  member of Nomadic Tribe available for appointment.  This Court then held thus:  "(9)(a) 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"\005..

Since the appellant is a member of one of the backward classes  referred to in the said Rule, she was entitled to a regular appointment in  the very first year when no person belonging to a Nomadic Tribe was  available.

The argument of the learned counsel appears to be well founded.   Admittedly the respondent No.4 was available for appointment only in  1988.  On the first occasion when the post was being filled up, there was  no member of a Nomadic Tribe available for appointment.  In the absence  of a candidate belonging to a Nomadic Tribe, the Rule enjoins year to year  appointment only if an available candidate does not belong to the  backward classes.  The question, therefore, is whether the appellant  belongs to a backward class."

The law laid down by this Court on the interpretation of Rule 9(9)(a) is in our  view resolves the controversy in the present case.  The first respondent was appointed  in 1994.  The vacancy was reserved for an ST candidate.  At that stage there was no  candidate belonging to ST available.  There is no dispute about the fact that the first  respondent belongs to the Hindu Mali community which is an OBC.  In the  circumstances, in terms of the provisions of Rule 9(9)(a) since no other candidate  belonging to ST was available, the first respondent was entitled to appointment on a  regular basis.  This Court, in the above case, held that in the absence of a candidate  belonging to the reserved category concerned, the rule enjoins year to year  appointment only if a available candidate does not belong to a backward class.  The  respondent belonging as he does to a backward class was entitled to a regular  appointment.  The subsequent appointment of P.B. Lohar, the 3rd respondent herein  again, operates to displace the first respondent because in any event much prior  thereto the first respondent had duly crystallised the right.  In any event, it has not been   demonstrated before this Court that the 3rd respondent was appointed subsequently in  the vacancy created by the termination of the first respondent.  

It was argued on the side of the Management that the High Court gravely erred  in placing reliance on the judgment of this Court in Shakuntala Ganpatsa Shirbhate  vs. Industrial Weaving Co-op. Society (supra) inasmuch as the facts involved in  these two cases are entirely different.  In the said cited case, the appointment of the  appellant therein was initially for a period of one year which was extended from year to  year several times and the last order passed in his favour mentioned the appointment  until further orders.  However, it was further argued that the appointment of respondent  No.1 in the instant case is only for the academic year 1995-96 wherein it is made clear  to the said respondent that the said appointment is liable to be terminated after the said  period.  Thus, the said case would not be applicable to the facts of the present case.   This contention, in our view, has no force.  In the instant case, the appointment was  extended from time to time on year to year basis on several occasions.  This Court has  clearly held that in the absence of a candidate belonging to a Nomadic Tribe the rule  enjoins year to year appointment only if an available candidate does not belong to the  backward classes.  The appointment order also clearly stipulates that terms of

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appointment and conditions of service shall be as laid down in the M.E.P.S. (Conditions  of Service) Regulation Act, 1977 and the rules made thereunder and that the  appointment is conditional subject to the approval of the Education Department and  that the post is reserved for SC and if candidate of that category will be available, the  services will be terminated.  In the instant case, the appointment of the first respondent  was approved by the Education Department on all occasions and that the  Management, the Teacher and the Department are all aware that the post in question  has been granted on totally temporary basis due to the backlog of ST candidate.  It is  also a matter of record that the appointment of the first respondent was sanctioned on  the basis of the approval and NOC of three-member Committee.  

While challenging the order of termination as illegal the first respondent, in his  appeal before the Tribunal, prayed for an order to make him permanent in service  which reads thus: 1)      Since I have completed two years of service in 1994-95 and 1995-96.   I think that there is no authority to terminate my services (in  accordance with Rule 4(6) of Service Rules).  Similarly since I have  completed two years service, I am entitled for protection to be  permanent in service as per Rule 5(2) of M.E.P.S. (Condition of  Service) Rules, 1977.  Therefore the termination order is illegal and  not executable. 2)      I am myself belonging to Hindu Mali OBC category and therefore I am  protected under rule 9(7).  Similarly as my appointment is as per rule  9(9)(a) and I am from OBC, I am entitled to be made permanent and  continue the service.  It is requested that this may also be considered.  The information in brief is as follows: 1.      Since two years service is completed (Probation period)  Protection for condition of service is granted u/s 4(6) & 5(2) of the  Act. 2.      I am Hindu Mali and belong to OBC category.  Hence entitled for  protection & continuity of service under rule 9(7) & 9(9)(a) of the  Rules.  In our opinion, the High Court has rightly placed reliance on the decision of this  court in Shakuntala Ganpatsa Shirbhate vs. Industrial Weaving Co-op. Society  (supra).  It was brought to our notice by the first respondent in the counter affidavit file d  by him a decisive and clinching document has been unfortunately withheld by the  appellant before this Court and it was filed before the High Court.  It is the certificate  dated 19.06.1996 issued by the principal of the appellant institution which categorically  confirms the fact that respondent No.1 worked as a full time Assistant Teacher during  the period 18.06.1994 to 01.05.1996.  In view of the above certificate, it is submitted  that the finding recorded by the Tribunal is clearly erroneous and, therefore, cannot be  sustained.  This document has been marked as Annexure-C1 which is the copy of the  Experience Certificate dated 19.06.1996 issued by the principal of the appellant  institution which reads thus: "Kankavali Shikshan Sanstha’s SHIVAJI MEMORIAL HIGH SCHOOL Late Karanaveer Yashwantrao Naik Technical Wing & Junior College of Science & Commerce, Kankavali, Dist. Sindhudurg EXPERIENCE CERTIFICATE This is to certify that Shri Manohr Ramchandra Gawali, M.A. B.Ed. was in  service of this School’s Higher Secondary Section as full time Assistant Teacher  to teach Marathi subject from 18.6.1994 to 1.5.1996.  He has been paid pay of  Rs.2000-3500 of the Higher Secondary level. His School work during period of service was very much satisfactory.   Hence issued this certificate. Kankavali Dated: 19.6.1996                                                         Sd/-                                                         Principal                                                         S.M. Junior College of Science                                                          & Commerce Kankavali

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In our opinion, the High Court taking into account of the relevant facts of the  case arrived at an accurate and correct conclusion as regards the rights of respondent  No.1.  It may not be out of place to mention that the post occupied by respondent No.1  was  a reserved post and as per the rules in the case of certain contingencies of non- filling of the posts, a person belonging to some other reserved category can occupy the  said post and respondent No.1 being belonging to OBC could have occupied the said  post.  However, the appellant removed respondent No.1 and surprisingly transferred  respondent No.4 to the said post and as such respondent No.4 also belongs to the  same reserved category as of respondent No.1.  It may not also be out of place to  mention that in the affidavit filed by the State, the State has specifically pointed out the   failure on the part of the appellant to abide by the rules governing the appointment.  

It has been demonstrated before us that the third respondent was appointed   subsequently in the vacancy created by the termination of the first respondent.  It was  also submitted at the time of hearing that the third respondent has retired from service.

The first respondent lost his job on 26.3.1996 in spite of Rule 9(9)(a) of the  M.E.P.S. Rules and the judgment of this Court in the case of Shakuntla Ganpatsa  Shirbhate vs. Industrial Weaving Co-op. Society & Ors. (supra).  During the course  of arguments, a statement was made on behalf of respondent No.1 that respondent  No.3 \026 Mr. P.B. Lohar, has retired and such statement was not contradicted by the  counsel for the Management.  During the course of arguments, we indicated that  respondent No.1 will be entitled for the job with immediate effect.  However, the back-  wages can be granted only from the date on which the third respondent \026 Mr. P.B.  Lohar has retired.  Mr. S.M. Jadhav, learned counsel appearing for the appellants  informed us that Mr. P.B. Lohar retired on 28.2.2005.

In such circumstances, we are of the opinion that the direction should be issued  to the appellant to take back respondent No.1 in service in the vacancy caused due to  the retirement of respondent No.3 and to allow him to discharge the function on the post  to which he was appointed.  We make it clear that respondent No.1 will not be entitled  to back wages from the date of his termination till his appointment.  He will be entitled  for the job with immediate effect with back wages only from 1.3.2005.  We feel that this  direction of ours would meet the ends of justice.

For the foregoing reasons, we hold that the appeal filed by the appellant \026  Institution is devoid of any merit and hence we dismiss the same by modifying the order  dated 5.2.2004 passed by the High Court as indicated above.  The interim order passed  on 21.7.2004 stands vacated in view of the final order and directions issued in the main  appeal.  However, there shall be no order as to costs.