Bombay High Court
Vilas Dashrath Mali vs The Secretary, School Education ... on 12 April, 2018
Equivalent citations: AIRONLINE 2018 BOM 738
Author: Bharati H. Dangre
Bench: B.R. Gavai, Bharati H. Dangre
903-wp-3081-2006
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 3081 OF 2006
Vilas Dashrath Mali ...Petitioner
Versus
The Secretary,
School Education Department And Ors. ...Respondents
WITH
WRIT PETITION NO. 213 OF 2007
Gangurde Bhagwan Yashwant ...Petitioner
Versus
The Secretary,
School Education Department And Ors. ...Respondents
----
Mr.Shaikh Nasir Masih a/w Mr.Moinuddin Chowdhari, Mr.Vishal
Jogwani for the Petitioner in both Petitions.
Mr.Milind More, AGP for Respondent Nos.1 to 3 in both Petitions.
Mr.Siddhartha R. Ronghe for Respondent Nos.4 and 5 in both
petitions.
----
CORAM : B.R. GAVAI &
SMT.BHARATI H. DANGRE, JJ.
DATE : 12th APRIL 2018
JUDGMENT :(Per Smt.Bharati H. Dangre, J)
1. Rule. Rule made returnable forthwith.
2. Writ Petition Nos.3081 of 2006 and 213 of 2007 revolve around similar set of facts and hence heard together by N.S. Kamble page 1 of 9 ::: Uploaded on - 27/04/2018 ::: Downloaded on - 27/04/2018 22:51:59 ::: 903-wp-3081-2006 consent of parties.
3. The petitioners have invoked the jurisdiction of this court praying for quashing and setting as side the erroneous action of the respondent in converting the petitioners from the post of Assistant Teacher to the post of Shikshen Sevak with effect from 13.06.2000. The grievance raised by the petitioner is that they were appointed on 01.08.1997 on the post of Assistant Teacher, on the basis of their qualification in the respondent-School. The petitioners in both the writ petitions belonging to OBC category and the order of appointment issued in their favour categorically mentioned that the appointment was purely temporary for the period of two years from 01.08.1997 in the leave deputation vacancy. It also mentioned that after expiry of the said period their services shall stand terminated without any notice. Irrespective of the said order of appointment, the respondent No.3 granted approval to the appointment of the petitioners for the period of one year on the ground that there is backlog of ST and NT candidate.
The approval to the appointment of the petitioner was granted as Assistant Teacher in the pay-scale of Rs.1400-2600.
The petitioners did not agitate their grievance at the relevant point of time since they were continued from year to year N.S. Kamble page 2 of 9 ::: Uploaded on - 27/04/2018 ::: Downloaded on - 27/04/2018 22:51:59 ::: 903-wp-3081-2006 basis. In the meantime, in the year 2000 the scheme of Shikshan Sevak came to be implemented and in academic session 2000-2001, the petitioners came to be appointed as Shikshen Sevak under the new scheme. The scheme of Shikshan Sevak came to be amended pursuant to a directions of the Division Bench of this Court and the government resolution pertaining to Shikshan Sevak came to be amended by making it amply clear that the Government Resolution is inapplicable to the teachers working on temporary basis against the reserved post of backward classes and they will continue to receive their salary as per MEPS rules till the selected candidates of backward classes are available or the teachers concerned is absorbed in service in according to the relevant rules and regulations.
4. It is the grievance of the petitioner that their appointments were converted into that of Shikshan Sevak's and approval was granted to their appointment for all the consecutive years holding that there is a backlog. It is the case of the petitioner's that as a matter of fact no candidate either from SC/NT came to be appointed till the petitioner has been approved as Shikshan Sevan in the year 2001 and even after their absorption as Assistant Teacher on completion of the tenure of the Shikshan Sevak no candidate from the aforesaid categories has been appointed in the school. The N.S. Kamble page 3 of 9 ::: Uploaded on - 27/04/2018 ::: Downloaded on - 27/04/2018 22:51:59 ::: 903-wp-3081-2006 submission of the petitioner is that assuming without admitting that they were admitted against backlog as per settled law. The petitioners ought to having to be a regular appointment and it was permissible to fill up the post from remaining other categories specified under Sub Rule 7 of the Rule 9 of MEPS (CS Rule 1981), in the event the person from the specified category is not available.
The petitioner makes a specific reference to sub Rule 9A. The petitioner was also placed reliance on the judgment of the Hon'ble Apex Court in the case of Kankanwali Shikshan Sanstha and Ors. V/s.M.R. Gavali & Ors. (Appeal (Civil)7553 of 2005) decided on 16th December 2005 and the judgment of the Hon'ble Apex Court in the case of Shakuntala Ganpatsa Shirbhate V/s. Industrial Weaving Co.Op. Society AIR-1194 SC 36.
The petitioners makes a specific reference to the Rule 9 of the MEPS Rules and in particular invite attention of this Court to Sub Rule 9(a) which permits inter changeability of the post belonging to backward classes if the post is reserved for backward class and if the candidate belonging to the said category is not available, then the said rules permit that the post is temporary on year to year basis for a candidate not belonging to backward class.
5. It would be useful to referred to Rule 9 of the MEPS N.S. Kamble page 4 of 9 ::: Uploaded on - 27/04/2018 ::: Downloaded on - 27/04/2018 22:51:59 ::: 903-wp-3081-2006 Rules, 1981 which deals with the appointment of staff and it is necessary to quote Sub-Rule 7 and Sub Rule 9 of Rule 9A read thus:-
"7. The Management shall reserve 34 per cent of the total number of posts of the teaching as well as non- teaching staff for the members of the Scheduled Castes, Scheduled Castes converts to Buddhism, Scheduled Tribes, Denotified Tribes, Nomadic Tribes and other Backward Classes as follows name:-
(a) Scheduled Castes and Scheduled Castes 13 per converts to Buddhism cent
(b) Scheduled Tribes including those living 7 per outside the specified areas cent
(c) Denotified Tribes and Nomadic Tribes 4 per cent
(d) Other Backward Classes 10 per cent.
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.
(b) In the case of non-teaching post, if a person from the particular category of Backward Classes is not available, the Management shall make efforts with N.S. Kamble page 5 of 9 ::: Uploaded on - 27/04/2018 ::: Downloaded on - 27/04/2018 22:51:59 ::: 903-wp-3081-2006 regular intervals to fill up the post within the period of five years and the post shall not be filled up during that period by appointing any other person who does not belong to the respective category of Backward Class."
6. In terms of Rule 9, in a contingency where a vacancy is reserved for a person belonging to particular category of backward classes and if it is not possible to fill the said vacancy because a person belonging to a particular category of backward classes is not available then it is permissible to fill in the post other remaining categories the order specified in sub Rule 7 and even if no other person from other categories is available it is permissible to fill the post temporarily as year to year basis by candidate not belonging to backward classes. This is not a situation in the present case as both the petitioners belong to OBC category and there was already an existing backlog of OBC category. In these circumstances it was permissible to appoint the petitioner in the said post as Assistant Teacher pending the backlog for ST/NT if any as claimed by the respondents. The petitioners where thus entitled for regular appointment on completion of the period of two years by taking recourse to the said rule and should have been declared to be confirmed as Assistant Teacher. In such circumstances the action of N.S. Kamble page 6 of 9 ::: Uploaded on - 27/04/2018 ::: Downloaded on - 27/04/2018 22:51:59 ::: 903-wp-3081-2006 the respondents in continuing the petitioners as Assistant Teacher on year to year basis though the appointment was on probation as Assistant Teacher and then appointing them again a Shikshan Sevak in the year 2000 is a grossly erroneous approach. The Hon'ble Apex Court in the case of Shakuntala Ganpatsa Shirbhate V/s. Industrial Weaving Co-Op. Society (Supra) has observed thus :
"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 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 N.S. Kamble page 7 of 9 ::: Uploaded on - 27/04/2018 ::: Downloaded on - 27/04/2018 22:51:59 ::: 903-wp-3081-2006 appointment of the first respondent was sanctioned on the basis of the approval and NOC of three-member Committee."
7. This view of the Hon'ble Apex Court is reiterated in judgment of Kankanwali Shinkshan Sanstha and Ors. V/s.M.R. Gavali & Ors. (Supra) wherein the Hon'ble Apex Court had opportunity to deal with Rule 9(9)(a) and the Court observed thus :-
"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 respondent belong 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."
N.S. Kamble page 8 of 9
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903-wp-3081-2006
In the light of legal position and the authority to pronouncement of the Hon'ble Apex Court, the action of the respondents cannot be sustained. The petitioners are entitled for being confirmed as Assistant Teacher in terms of their order of appointment and they are entitled for drawing the consequential benefits being confirmed as an Assistant Teacher on completion of probation of two years.
8. In the light of the aforesaid observations the respondent No.2 and 3 are directed to grant approval for the appointment of the petitioners as Assistant Teachers on completion of the period of probation in terms of their order of appointed as Assistant Teacher and confer all ancillary benefits including the difference in pay, flowing from such confirmation as Assistant Teacher. The arrears are directed to be paid within a period of three months.
9. With the aforesaid observations, writ petitions are allowed. Rule made absolute in aforesaid terms.
(SMT.BHARATI H. DANGRE, J.) (B.R. GAVAI, J.)
N.S. Kamble page 9 of 9
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