Bombay High Court
Dnyandeo Uttamrao Dhandar And Others vs Vilas Laxman Gawai, Laboratory ... on 29 January, 2019
Author: Manish Pitale
Bench: Manish Pitale
1 cao 398.18.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Civil Application (O) No. 398 of 2018
In
MCA St. No.18323 of 2017
In
Writ Petition No.3364 of 2008 (D)
(Dnyandeo Dhandar V Vilas Gawai and others)
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Office Notes, Office Memoranda of Court's or Judges Order.
Coram, appearances, Court's Orders
or directions and Registrar's orders.
Mr. V.A. Kothale, Counsel for petitioner.
Mr. A.Z. Jibhkate, Counsel for resp. no.1.
Mrs. S.W. Deshpande, Counsel for resp. nos.2 and 3.
Ms Kalia, AGP for resp. no.4.
Coram : Manish Pitale, J.
Dated : 29th January, 2019.
Heard.
2. This is an application filed for condonation of delay of 21 days in filing the accompanying review application on behalf of the applicant.
3. For the reasons stated in the application, the same is allowed and the delay is condoned.
4. Civil Application stands disposed of.
M.C.A. St. No.18323 of 2017By this review application, the applicant is seeking review of judgment and order dated 01-07-2017 passed by this Court, whereby Writ Petition of the management was allowed. Hence, the applicant is seeking review of judgment and order dated 01-07-2017 passed by this Court by ::: Uploaded on - 31/01/2019 ::: Downloaded on - 31/01/2019 23:23:44 ::: 2 cao 398.18.odt which the order passed by the School Tribunal in favour of the applicant granting reinstatement and other reliefs has been set aside.
2. While the learned Counsel appearing for the applicant has submitted that the main reason on the basis of which the Writ Petition of the management was allowed was that this Court came to a conclusion that the appointment of the applicant on the post of Laboratory Attendant was not by following proper procedure as contemplated under Section 5 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short, 'MEPS Act, 1977') and that therefore, the order of the Tribunal was found to be unsustainable. It is submitted that after passing of the order of this Court, the applicant had been able to procure an advertisement in pursuance of which he had applied for the post of Laboratory Attendant and he stood appointed in pursuance thereof in the year 1996. It is submitted that although the respondent management has placed on record a letter from the editor of the said newspaper in which the advertisement was published stating that the original copy of the newspaper was not available, that could not be a ground to refute the material placed on record by the applicant to show that there was an error apparent on the face of the impugned judgment and order passed by this Court. On this basis, it is contended that the review application deserves to be allowed.
3. A perusal of the judgment and order dated 01-07-2017 passed by this Court in Writ Petition No.3364 of 2008 along with Writ Petition No.4434 of 2008, shows that this Court has taken into consideration the material that was placed before the School Tribunal in order to examine as ::: Uploaded on - 31/01/2019 ::: Downloaded on - 31/01/2019 23:23:44 ::: 3 cao 398.18.odt to whether the appointment of the applicant could be said to have been made in terms of Section 5 of the MEPC Act, 1977. In this context, the observations made by this Court in the said judgment and order dated 01-07-2017, are relevant and they read as follows :-
"12] Further the observations in paragraph 13 of the impugned judgment and order would indicate that there are no pleadings of either parties that lawful recruitment process was followed while giving appointment to respondent no.1 that is no advertisement was published to fill up the post no other candidate was called for interview and there was no selection process undertaken. Despite these observations, Tribunal held that the management is not entitled to take benefit of its own wrong. Considering the fact that respondent no.1 was appointed by the management for an academic session 1996-97, responsibility came to be fastened on the management and the Tribunal held that the appointment of respondent no.1 needs to be protected.
13] The above observations are contrary to the settled position of law that in the absence of compliance of Section 5 of the MEPS Act, back door entry and appointment cannot be protected. As respondent no.1 has failed to establish his case before the Tribunal, there is no question of going into the defence raised by the management in response to memo of appeal. At the most, on the basis of material placed on record, it can be said that management, without following the procedure prescribed under Section 5 of the MEPS Act, appointed respondent no.1 for a temporary period. As respondent no.1 failed to establish that his appointment was on a clear and permanent post by following the procedure laid down under the Act and ::: Uploaded on - 31/01/2019 ::: Downloaded on - 31/01/2019 23:23:44 :::
4 cao 398.18.odt the Rules, this court finds it unnecessary to go into the action of management in appointing respondent no.1 for a temporary period. However, considering the fact that respondent no.1 had no right to post, relief of reinstatement could not have been granted to him. As this court finds that impugned judgment and order is contrary to the settled proposition of law, interference is warranted in writ jurisdiction."
4. In fact, in earlier portion of judgment of this Court it is recorded that, the Tribunal failed to notice that there was absence of pleadings and evidence to show compliance of Section 5 of the MEPC Ac, 1977 and yet the Tribunal had reached the conclusion that the appointment of the applicant was on a clear and sanctioned post.
5. The only reason why the applicant has filed the present application for review is that now he has been able to procure an advertisement, in pursuance of which he purportedly applied and he was appointed on the post of Laboratory Attendant in the year 1996. According to the learned Counsel for the applicant, such material is enough to dislodge the findings rendered by this Court in the said judgment and order dated 01-07-2017.
6. The said contention raised on behalf of the applicant cannot be accepted, because even if it is accepted that the advertisement was issued by the respondent for the said post, there is no material on record to show that firstly, the applicant had submitted an application in pursuance of the very advertisement for appointment before the management and secondly, that there was indeed the process of interview ::: Uploaded on - 31/01/2019 ::: Downloaded on - 31/01/2019 23:23:44 ::: 5 cao 398.18.odt conducted wherein there were competing claimants, demonstrating that the applicant was appointed on the basis of regular process of selection and appointment as contemplated under Section 5 of the MEPC Act, 1977, on a clear and vacant post. By merely producing advertisement, the findings rendered by this Court that the appointment being a back door entry cannot be upset.
7. In the light of the above, it becomes clear that the applicant has failed to show any error apparent on the face of the record and the judgment and order dated 01-07-2017 passed by this Court and therefore, the present review application is found to be without any merit. Accordingly, the review application is dismissed.
JUDGE Deshmukh ::: Uploaded on - 31/01/2019 ::: Downloaded on - 31/01/2019 23:23:44 :::