MANGESH BALKRUSHNAJI DESHMUKH Vs. VINAYAK SHIKSHAN SANSTHA

JUDGEMENT

(1.) This petition challenges the judgment and order dated 29.07.2005 delivered by the School Tribunal, Amravati, dismissing the Appeal No. 89 of 1999 filed by the petitioner under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, challenging his termination from service by an order dated 13.08.1999. The tribunal has held that the petitioner was not qualified for being appointed as an Assistant Teacher in terms of the qualification prescribed in the advertisement, his appointment was purely on temporary basis against the post reserved for Scheduled Tribe and Nomadic Tribe candidate made for the reason of nonavailability of such candidate and hence, his initial appointment cannot be treated as on probation so as to confer upon him deemed confirmation in service.

(2.) Shri Gode, the learned counsel appearing for the petitioner submits that it was the specific stand of the management that the appointment of the petitioner as an Assistant Teacher was against the post reserved for Scheduled Tribe and Nomadic Tribe candidate and since the candidate belonging to such category was not available, the appointment of the petitioner from Other Backward Class category should have been treated as on probation for a period of two years. He has relied upon the decision of the learned Single Judge of this Court in case of Bhartiya Buddha Dhamma Dnyan Vidyalaya and another vrs. Presiding Officer, School Tribunal, Nagpur and others, reported in 2010 (3) Mh.L.J. 177. He submits that the fact of nonavailability of the suitable qualified candidate from Scheduled Tribe and Nomadic Tribe category has been admitted and the appointment of the petitioner belonging to the Other Backward Class Category on temporary year to year basis has also not been disputed. He submits that in terms of the decision of this Court, cited supra, the initial appointment of the petitioner on 25.11.1997 should be treated as a probation and the termination made on 13.08.1999 was not on the ground of unsatisfactory service of the petitioner.

(3.) No doubt that the appeal filed by the petitioner was defended by the respondents only on the ground that the post was reserved for Scheduled Tribe and Nomadic Tribe category and since the qualified candidate from the said category was not available, the petitioner was appointed purely on the temporary basis. However, unless the petitioner satisfies this Court or the tribunal on the basis of his qualification, it cannot be said that the initial appointment of the petitioner on 25.11.1997 should be treated as on probation, which can only be terminated on the basis of unsatisfactory service record. The initial advertisement issued in the year 199798 in response to which the petitioner applied for the post of Assistant Teacher indicated the qualification for the post as H.S.C/S.S.C. D.Ed. Similar was the qualification prescribed in the second advertisement dated 16.06.1998. The Education Officer granted his approval on year to year basis and in response to the petition, the stand of the Education Officer is that the petitioner was not possessing the qualification of S.S.C. D.Ed and his appointment was against the post reserved for Scheduled Tribe and Nomadic Tribe category.