MALIKARJUN SHIKSHAN PRASARAK MANDAL Vs. R V RAJMANE

JUDGEMENT

(1.) THE petitioner Society runs its School at Village Chapalgaon in Akkalkot Taluka of Solapur District. In June 1980, the Society issued an advertisement inviting applications for appointment to the post of an Assistant Teacher. The advertisement clearly recited that the post is a reserved post and meant for candidates belonging to Scheduled Tribes and Nomadic Tribes. The Educational qualification required was M. Sc. , B. Ed. or B. Sc. , B. Ed. Mathematices as principal subject at degree level. Serveral applications including of respondent No. 1 were received. The respondent No. 1 does not belong to any of the reserved categories As the candidates from reserved categories were not available inspite of all the efforts made by the Institution, the Society decided to appoint respondent No. 1 to the post. The society had secured non-availability certificate from Shivaji University, Information and Guidance Bureau as well as from the Special Regional Employment Officer, Solapur to the effect that the candidate from the reserved category was not available. The respondent No. 1 was then appointed on September 22, 1980 and the appointment letter makes it clear that the appointment is for one academic year, i. e. upto May 31, 1981 and is purely on temporary basis. The appointment was continued with the permission of the Education Officer subsequent to May 31, 1981 but was terminated by letter dated September 22, 1982.

(2.) THE respondent No. 1 thereupon preferred appeal before the Presiding Officer, School Tribunal, Pune. The Tribunal came to the conclusion that respondent No. 1 was appointed clearly on a temporary basis in a vacancy which was reserved for reserved candidates and even though respondent No. 1 does not belong to that category because of the non-availability of the candidate of backward community. The Tribunal then proceeded to hold that the appointment of respondent No. 1 was on probation and in view of the provisions of Section 5 (4) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, the services of the petitioner could not have been terminated. The Tribunal thereupon directed the Management to reinstate respondent No. 1 by setting aside the order of termination. The Tribunal also directed that respondent No. 1 shall be paid backwages. The order of the Tribunal is under challenge in this petition filed under Articles 226 and 227 of the Constitution of India.

(3.) SHRI Chandurkar, learned Counsel appearing on behalf of the Management, submitted that the provisions of Sub-section (4) of Section (5) of the Act have no application whatsoever to the facts of the case and the Tribunal is mis-directed in setting aside the order of terminatton by reference to the provisions of Sub-section (4) of Section 5 of the Act. The submission is correct and deserves acceptance. The Tribunal very rightly held that the appointment of respondent No. 1 was purely temporary and was made only because the candidate belonging to the reserved category was not available. Sub-section (4) of Section 5 of the Act provides that if the services of a probationer teacher are terminated and such probationer is re-appointed by the Management within a period of one year from the date of termination, then the period of probation undergone shall be taken into consideration in calculating the required period of probation for the purpose of Section 2. We are unable to appreciate how sub-Section (4) of Section 5 of the Act has any application to the facts of the case. The question of computing period to determine the probation period did not arise as respondent No. 1 was not holding the post as probationer. The appointment of respondent No. 1 was purely temporary due to the non-availability of the candidate belonging to reserved category and it was permissible for the Management to terminate the service by giving one month's notice. In our judgment, the order of the Tribunal is entirely perverse and is required to be quashed.