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2021 DIGILAW 1020 (BOM)

Prashant v. Vidarbha Gramin Shikshan Sanstha

2021-07-20

A.S.CHANDURKAR, G.A.SANAP

body2021
JUDGMENT G.A. Sanap, J. - In this letters patent appeal challenge is to the order dated 26.7.2010 passed by the learned Single Judge of this Court in the writ petition rejecting the writ petition and maintaining the order dated 1.7.2005 passed by the learned Member of the School Tribunal, Amravati whereby the learned Member of the School Tribunal had dismissed the appeal filed by the appellant challenging the cancellation of his appointment as a Junior Clerk with the respondent Nos.1 and 2. 2. The facts leading to this appeal are as follows : It is the case of the appellant that he was appointed as a Junior Clerk vide order dated 30th May, 1993 on probation for a period of two years with the respondent Nos.1 and 2. He joined his duty on 28.6.1993. It is the case of the appellant that vide communication dated 21st November, 1994 the respondent No.2 informed that in view of the orders dated 14th June, 1994 and 1 st October, 1994 issued by the Education Officer (respondent No.3) he was reverted to the post of Peon from the post of Junior Clerk. According to the appellant, his reversion from the post of Junior Clerk to the post of Peon would constitute reduction in rank. The appellant had challenged this order before the School Tribunal, Amravati. 3. The learned Member of the School Tribunal dismissed the appeal for the reasons recorded vide order dated 1st July, 2005. The appellant challenged the judgment and order passed by the School Tribunal by filing writ petition. The learned Single Judge vide order dated 26th July, 2010 rejected the writ petition and maintained the order passed by the learned Member of the School Tribunal, Amravati. The learned Single Judge held that initial appointment of the appellant on the post of Junior Clerk was not according to law inasmuch as he was appointed on the post which was reserved for candidate of Scheduled Caste category. The contention raised with regard to the reduction in the rank was rejected on the ground that subsequent appointment of the appellant on the post of Peon was a fresh appointment and as such does not constitute the reduction in rank. 4. Being aggrieved by the judgment and order passed by the learned Single Judge the appellant has filed this Letters Patent Appeal. 4. Being aggrieved by the judgment and order passed by the learned Single Judge the appellant has filed this Letters Patent Appeal. The grounds of a challenge to the impugned order passed by the learned Single Judge have been set out in the memo of appeal. The main ground is that the learned Single Judge has not properly considered and appreciated the material placed on record and came to a wrong conclusion. 5. We have heard learned Advocate for the appellant and learned Advocate for the respondent Nos.1 and 2. We have also heard Smt. S.S. Jachak, learned Assistant Government Pleader for the respondent No.3. Perused the record and proceedings. 6. Learned Advocate Shri A.J. Thakkar, for the appellant submitted that the appellant was appointed on the post of Junior Clerk by following the procedure. The learned Advocate submitted that the appellant was not appointed on the post of Peon and, therefore, his reversion from the post of Junior Clerk to the post of Peon was contrary to the provisions of law inasmuch as it would constitute reduction in rank. The learned Advocate further submitted that the respondent No.3 did not specifically deny the approval to the appointment of the appellant. The learned Advocate further submitted that the respondent Nos.1 and 2 in order to accommodate the respondent No.4, who happens to be a close relative of the President, Shri S.A. Narkhede, respondent No.1 the appointment of the appellant was cancelled on the basis of the communication received from respondent No.3. The learned Advocate submitted that when the appointment of the respondent No.4 was continued against the said post, the appellant could have been continued on the post of Clerk. The learned Advocate submitted that the respondent No.3 vide communication dated 1st October, 1994 had called upon the respondent Nos.1 and 2 to make compliance of certain queries/objections raised in the communication. The learned Advocate vehemently submitted that the respondent Nos.1 and 2 wrongly construed the said communication as a denial of the approval to the appointment of the appellant as a Junior Clerk. The learned Advocate besides the above submissions on merit, submitted that the learned Single Judge has not properly considered and appreciated the prayer made by the appellant for a direction to the respondent Nos.1 and 2 to pay the compensation. The learned Advocate besides the above submissions on merit, submitted that the learned Single Judge has not properly considered and appreciated the prayer made by the appellant for a direction to the respondent Nos.1 and 2 to pay the compensation. The learned Advocate submitted that the learned Single Judge has not properly considered and appreciated the evidence placed on record and came to the wrong conclusion. 7. The learned Advocate Shri R.A. Haque, for the respondent Nos.1 and 2 submitted that the respondent Nos.1 and 2 by leading cogent and concrete evidence before the School Tribunal have proved that the post on which the appellant was appointed was reserved for candidate belonging to the Scheduled Caste category. The learned Advocate submitted that the learned Member of the School Tribunal as well as the learned Single Judge have considered said evidence and accepted the same. The learned Advocate submitted that the respondent No.3 vide communication dated 1st October, 1994 categorically denied the approval to the appointment of the appellant as a Junior Clerk on the ground that the post against which he was appointed was reserved for the Scheduled Caste category and as such directed the respondent Nos.1 and 2 to terminate the appointment of the appellant. The learned Advocate further submitted that after termination of the appointment of the appellant another candidate belonging to the Scheduled Tribe Shri Dnyaneshwar Wandekar was appointed on the said post and the said appointment has been approved by the Education Department. The learned Advocate submitted that appointment of the appellant on the post of a Peon on 21st November, 1994 was a fresh appointment and in no case could be termed as reversion of the appellant from the post of Junior Clerk to the post of Peon. The learned Advocate submitted that the learned Single Judge has properly appreciated the material placed on record and on doing so maintained the order passed by the learned Member of the School Tribunal and rejected the writ petition filed by the appellant. 8. The learned Assistant Government Pleader Smt. S.S. Jachak supported the judgment and order passed by the learned Single Judge. The learned Assistant Government Pleader submitted that the appellant could not have been appointed against the vacancy which was reserved for a candidate belonging to the Scheduled Caste category. 9. 8. The learned Assistant Government Pleader Smt. S.S. Jachak supported the judgment and order passed by the learned Single Judge. The learned Assistant Government Pleader submitted that the appellant could not have been appointed against the vacancy which was reserved for a candidate belonging to the Scheduled Caste category. 9. In the background of the submissions advanced by the learned Advocates for the parties primary question needs to be addressed is as to whether appointment of the appellant on the post of Junior Clerk was legal and valid. Section 5 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short, "M.E.P.S. Act") provides for obligation of management of the private school in the matter of filling in the vacancy in a private school of the teaching and non-teaching staff. Sub-Section (2) provides that in a case of non-teaching staff the person appointed shall be on a probation for a period of two years. Sub-Section (2) further provides that subject to the provisions of sub-Sections (4) and (5) on completion of the probation period of two years, the appointed person shall be deemed to have been confirmed. Section 5, sub-Section (2) of the M.E.P.S. Act would be relevant in the context of termination of the service of the appellant before completion of two years period. The appointment order is dated 30th May, 1993. Perusal of the order would show that the appellant had applied for appointment on 30th May, 1993 itself. Perusal of this order would show that there was no publication of advertisement by the respondent Nos.1 and 2 inviting applications for filling up vacancy. It is a case of the respondent No.3 that the appellant was appointed by the respondent Nos.1 and 2 on the vacancy reserved for Scheduled Caste category candidate. In this context Rule 9, sub-Rule (7) and (8) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (for short, "M.E.P.S. Rules) would be relevant. Sub-Rule (7) mandates the management to reserve 52 percent of total number of posts of teaching and non-teaching staff for the persons belonging to backward class candidates. Sub-Rule (8) provides that if the posts specified in sub-Rule (7) remain vacant after following the procedure specified in sub-Rule (2A), the management for filling up the said posts shall adopt the procedure laid down in sub-Rule (9). Sub-Rule (8) provides that if the posts specified in sub-Rule (7) remain vacant after following the procedure specified in sub-Rule (2A), the management for filling up the said posts shall adopt the procedure laid down in sub-Rule (9). Sub-Rule (9) mandates that the posts specified in sub-Rule (7) shall not be filled in by the candidates belonging to the other castes, tribes, categories or classes, than the castes and tribes for which the posts are reserved. In our opinion while dealing with the primary submissions advanced by the learned Advocate for the appellant the provisions of Section 5 of the M.E.P.S. Act and the provisions of Rule 9, sub-Rules (7),(8) and (9) of the M.E.P.S. Rules need application. Admittedly, the appellant belongs to 'Open' category. The record would show that on his appointment the proposal was sent to the Education Officer (Primary), Zilla Parishad, Akola for approval (respondent No.3). The respondent No.3 vide communication dated 14.6.1994 called upon the respondent Nos.1 and 2 to make compliance of a certain deficiencies noticed by the respondent No.3. The record would further show that the proposal was re-submitted after making compliance of the queries. The relevant letter/communication received from the respondent No.3 is dated 1st October, 1994. 10. The learned Advocate on the basis of the contents of the document which is at Page 83 of the proceeding submitted that the respondent No.3 did not specifically reject the approval to the appointment of the appellant but had called upon the respondent Nos.1 and 2 to make compliance of the queries raised in the letter and re-submit the proposal. We have minutely perused this communication. Perusal of the communication would show that nearabout 39 objections/queries had been raised by the respondent No.3. For the purpose of addressing the submission advanced by the learned Advocate for the appellant Clause No.30 would require minute perusal and appreciation. Perusal of Clause No.30 of this communication would show that the vacancy on which the appellant was appointed was reserved vacancy. The respondent No.3 categorically stated that on the reserved vacancy appointment of Open category candidate cannot be approved. The respondent No.3 specifically called upon the respondent Nos.1 and 2 to immediately cancel the appointment of the appellant. It is apparent on the face of the record that the appointment order is dated 30th May, 1993. This communication is dated 1st October, 1994. The respondent No.3 specifically called upon the respondent Nos.1 and 2 to immediately cancel the appointment of the appellant. It is apparent on the face of the record that the appointment order is dated 30th May, 1993. This communication is dated 1st October, 1994. On receipt of this communication dated 1st October, 1994 from the respondent No.3, the respondent Nos.1 and 2 cancelled the appointment of the appellant made vide appointment order dated 30th March, 1993. It is crystal clear that on the date of cancellation of appointment the appellant did not complete two years probationary period. Besides the appointment of the appellant was made against the vacancy which was reserved for Scheduled Caste category candidate. The communication of the respondent No.3 is specific and clear vis-a-vis this aspect. It, therefore, goes without saying that the appointment of the appellant in the vacancy which was reserved for Scheduled Caste candidate was ipso facto illegal. In our opinion this stigma of illegality would attach to this appointment order since the very inception of the appointment. 11. The learned Single Judge on the basis of the material placed on record came to the conclusion that this appointment was made in violation of the provisions of law. We fully agree with this view taken by the learned Single Judge. The respondent Nos.1 and 2 have categorically stated that after termination of the appointment of the appellant, one Shri Dnyaneshwar Wandekar belonging to Scheduled Caste category was appointed in the said vacancy. It has been established that the Education Department granted approval to the appointment of Shri Wandekar. A grievance has been made that the respondent No.4 was subsequently appointed as a Junior Clerk in his place. It is the contention of the appellant that this favour was extended to respondent No.4 because he was a close relative of Shri Narkhede, the President of respondent No.1. It is undisputed that this appointment of the respondent No.4 was made after termination of the appointment of the appellant made in the vacancy which was reserved for Scheduled Caste category. The subsequent appointment, therefore, cannot be directly co-related with the appointment of Dnyaneshwar Wandekar on which the appellant was earlier appointed. It is undisputed that this appointment of the respondent No.4 was made after termination of the appointment of the appellant made in the vacancy which was reserved for Scheduled Caste category. The subsequent appointment, therefore, cannot be directly co-related with the appointment of Dnyaneshwar Wandekar on which the appellant was earlier appointed. In our view the appreciation of the above stated facts and evidence within the parameters of the provisions noted above would show that the appointment of the appellant made against the post reserved for Scheduled Caste category was illegal from its inception. 12. In our opinion once the above conclusion is arrived at on the basis of the material placed on record the subsequent contention with regard to the reversion to the post of Peon would become inconsequential. However, in order to bring clarity we deem it appropriate to examine the same as well. A case is sought to be made out that the appellant was reverted to the post of Peon from the post of Junior Clerk. In our opinion this case cannot be accepted for more than one reason. The order of appointment of the appellant as a Peon dated 21st November, 1994, Annexure-P3, would show that on receipt of communication from the respondent No.3 the appellant was appointed as a Peon from the post of Junior Clerk. The plain reading of this appointment letter would show that it does not speak about the reversion. It categorically states about the fresh appointment on the post of Peon. Secondly, the question of reversion would not arisen in this case inasmuch as the appellant was not promoted from the post of Peon to the post of Junior Clerk. In the background of the case of the respondent Nos.1 and 2 the appellant could not have been reverted to the post of Peon. Since the appointment order does not speak about the reversion, case of the reversion sought to be advanced by the appellant and ultimate reduction in the rank does not hold any water. In the teeth of the evidence and particularly appointment order dated 21st November, 1994 it is not possible to accept this contention of the appellant. Since the appointment order does not speak about the reversion, case of the reversion sought to be advanced by the appellant and ultimate reduction in the rank does not hold any water. In the teeth of the evidence and particularly appointment order dated 21st November, 1994 it is not possible to accept this contention of the appellant. On the basis of the proved facts it is apparent that on receipt of the communication from the respondent No.3 dated 1st October, 1994 the respondent Nos.1 and 2 cancelled the appointment of the appellant as a Junior Clerk and took pity on him and appointed him as a Peon. In our opinion this appointment on the post of a Peon ought to have been accepted without any grievance as a blessing in disguise by the appellant. Instead, he dragged the respondent Nos.1 and 2 in the litigation. The learned Member of the School Tribunal did not accede to the claim of the appellant. The learned Single Judge on re-appreciation of the evidence confirmed the order of the School Tribunal. In this appeal on minute perusal of the record and proceeding, we do not find any mistake in the order passed by the learned Single Judge on merit. Therefore, this appeal cannot be allowed. The submission advanced by the learned Advocate for the appellant, therefore, deserves negation. We are in agreement with the submission advanced by the learned Advocate for the respondent Nos.1 and 2 and the learned Assistant Government Pleader for the respondent No.3. 13. It would be necessary to deal with the last contention with regard to the compensation. The learned learned Single Judge declined the prayer for awarding compensation. Learned Advocate for the appellant in support of his submission to claim the compensation relied upon a decision of the learned Single Judge of this Court in the case of Nehru Jankalyan bahu-Uddeshiya Shikshan Sanstha and another Vs. Mohan Suryabhan Wanjari and another, (2003) 1 MhLJ 425 . The learned Advocate on the basis of the proposition has prayed that the appellant needs to be compensated for the loss suffered by him due to illegal action of the respondent Nos.1 and 2. In our view the proposition cannot be made applicable to the facts of this case. The appellant on cancellation of his appointment was given a fresh appointment as a Peon. In our view the proposition cannot be made applicable to the facts of this case. The appellant on cancellation of his appointment was given a fresh appointment as a Peon. Similarly, the appellant has not produced iota of evidence to establish that the post on which he was appointed was advertised in Open category. In our opinion, for these twin reasons the appellant is not entitled for compensation. In our opinion the view taken by the learned Single Judge on this point is unassailable. In the facts and circumstances, we are of the opinion that there is no substance in the appeal. The appeal, therefore, deserves to be dismissed. Hence, following order : ORDER (i) The appeal stands dismissed. (ii) In the circumstances the parties shall bear their own costs.