LAWS(BOM)-2007-8-295

UDAY BOJRAJ TONEY Vs. AKKALKOT EDUCATION SOCIETY

Decided On August 27, 2007
UDAY BOJRAJ TONEY Appellant
V/S
Akkalkot Education Society Respondents

JUDGEMENT

(1.) The Appellant was appointed as a teacher for physical education by the Respondents between 4th July, 1988 and 22nd April, 1989 on a clock hour basis. The case of the Appellant is that he continued to work during the period between 1st July, 1989 and 22nd April, 1990. During the period 26th June, 1990 and 19th June, 1991 the Appellant claims to have been engaged as a part time employee. Thereafter for the period between 20th June, 1991 and 19th June, 1992 he was stated to be recognized as a full time employee a capacity on which the Appellant claims to have worked between 1st August, 1992 till 20th June, 1993 and 21st June, 1993 until 17th September, 1993. The Appellant at the material time held the B.A. and BP Ed. qualifications. On 18th September, 1993 the services of the Appellant were stated to have been orally terminated. The case of the Appellant is that in 1991 he had contested municipal elections in which he defeated the chairman of the management of the Respondent and the order of termination was as a result of the grudge borne by the chairman towards the Appellant. The Appellant preferred an appeal before the School Tribunal and an ad interim order was passed staying the termination. The management moved this Court in a petition under Article 227 in which the order of the School Tribunal was stayed. The case of the Appellant is that the management thereafter allowed him to continue in service for one year between 11th June, 1994 and 31st January, 1995 and thereafter between 31st January, 1995 until 25th July, 1995. An advertisement was issued by the management calling for applications inter alia for the post of physical education teacher. On 25th July, 1995 the services of the Appellant were terminated by an order of oral termination. The teacher appointed in the post of the Appellant between 1995 and 1998 was stated to have been terminated from service. In 1998 an advertisement was issued by the management once again in pursuance of which the Appellant was appointed. In August 1999 the services of the Appellant were alleged to have been terminated after he had rendered 14 months of service.

(2.) The appeal preferred by the Appellant for challenging the initial order of termination was dismissed by the School Tribunal on 31st January, 1995. The challenge to the order of termination passed in August 1999 was dismissed by the School Tribunal on 8th August, 2002. Writ Petition 4388 of 1995 was instituted by the Appellant for challenging the order of the School Tribunal dated 31st January, 1995. Writ Petition 6297 of 2002 was instituted by the Appellant to challenge the order of termination dated 8th August, 2002. The Writ Petitions were taken up for hearing together and were dismissed by an order of the Learned Single Judge dated 11th January, 2007 which is impugned in these proceedings.

(3.) The School Tribunal came to the conclusion that the Appellant was not eligible for appointment as a physical education teacher on the ground that he did not satisfy the criteria laid down in a Government Resolution dated 25th January, 1990. The contention of the Appellant was that the qualifications that were prescribed under the rules framed in pursuance of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 would prevail over executive instructions. The second ground which weighed with the School Tribunal was that the appointment of the Appellant was against a post reserved for a backward class candidate and hence his appointment was temporary. The Learned Single Judge held that it was not necessary to address the wider question raised in regard to the competence of the State Government to prescribe the eligibility criteria at variance with what was laid down in the rules, since in any event it was found that the Appellant had been appointed only on a temporary basis and upon the expiry of the term of appointment, his services had come to an end. The School Tribunal had placed reliance on the appointment order which mentioned that the post being reserved; the appointment of the Appellant who was an open category candidate was not on a permanent basis. The contention of the Appellant was that no order of appointment was issued to him for the academic sessions 1991-92 and 1993-94. The Learned Single Judge noted that neither before the School Tribunal nor in the writ petition before this Court was there any averment to the effect that the Appellant was not issued with any order of appointment. In these circumstances, the finding of fact arrived at by the Tribunal about the appointment of the Appellant against a reserved post was in the view of the Learned Single Judge not required to be interfered with.