PRAKASH SHIVRAJ DALVI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This petition arises from the Judgement and order dated 26-11-1997 rendered by the School Tribunal at Kolhapur in Appeal No. 164/1996 filed by the petitioner whereby the appeal came to be dismissed. The factual matrix which is not in dispute and relevant to decide this petition would be stated as under. The Petitioner who had his M.Sc. (Mathematics) qualifications, obtained B.Ed. degree in the year 1992. On 4-5-1995 Respondent No. 3 & 4 released an advertisement and published in the local newspaper to fill in the post of Assistant Teacher in D.B.J. Junior College at Chiplun for the academic year 1995-96 and as per the said advertisement, full time lecturers in Mathematics, Marathi and Psychology were to be appointed whereas in English and Sanskrit a part time lecturer was to be appointed and in Geography a lecturer on C.H.B. (clock hour basis) was to be appointed in the Senior Section. The Petitioner responded to the said advertisement by submitting his application and he was called for interview on 8-6-1995. On 5-7-1995 he came to be appointed as a lecturer in Mathematics. However, on 14-3-1996 he was issued a notice informing him that his tenure would come to an end on 20-4-1996. On 9-5-1996 the Respondent Nos. 3 & 4 released a fresh advertisement which was published in one of the local newspaper by name "Pudhari" to fill in posts of lecturers in 7 different subjects on full time basis and Mathematics was one of them for the academic year 1996-97. The Petitioner submitted his application and was interviewed on 16-6-1996 but he was not selected and instead one Mr. S.V. Dandekar was appointed.

(2.) Having realised that his claim was not considered for the post of lecturer in Mathematics for the academic year 1996-97, the Petitioner approached the School Tribunal in Appeal No. 164/96 and contended that when he joined on 5-7-1995 there was no appointment order issued to him, he was an open category candidate and the post of lecturer in Mathematics was not a reserved post. He met the requirements of qualifications for the said post and, therefore, he was deemed to have been appointed on probation within the meaning of Section 5 of the MEPS Act, 1977 (the Act for short). In short in the Appeal he challenged the notice dated 14-3-96 and his disengagement from 21-4-96 as a lecturer in Mathematics in the junior college and prayed for reinstatement in service with backwages and all consequential benefits on the ground that the said notice was illegal.

(3.) The management i.e. present Respondent Nos. 3 & 4 filed their written-statement before the School Tribunal on or about 28-11-1996 and submitted while opposing the appeal, that the appellant was issued an appointment order dated 5-7-1995. The post on which he was appointed was a reserved post for Scheduled Tribe. On 12-7-95 the appellant submitted the application acknowledging the fact that he was appointed against the reserved post for Scheduled Tribe and he would have no grievance for such an appointment. The appointment order clearly stated that it was for a specific period upto 20-4-1996 and on temporary basis, the appointment of the appellant was made against the vacancy caused due to the removal of the earlier lecturer by name Mr. Kashid who had filed an Appeal before the School Tribunal. The management further contended that the appellant had accepted the termination notice dated 14-3-1996 and when a fresh advertisement was released on 9-5-96, he had submitted his application in response thereto. He was interviewed on 16-6-96 but was not appointed as a better candidate than him by name Mr. Dandekar who came from the open category was appointed on temporary basis for the academic year 1996-97. It was further submitted by the management that the appointment of the appellant for the year 1995-96 as well as the appointment of Mr. Dandekar for the next academic year was not approved by the Dy. Director of Education and the management could not bear the salary burden of both these teachers during the respective academic years. The management, therefore, opposed the maintainability of the Appeal under Section 9 of the Act on the ground that it was filed only because the appellant was not selected in the academic year 1996-97. The management also brought on record all the documents like the appointment order dated 5-7-95, the undertaking furnished by the appellant on 12-7-1995, copies of the advertisements released on 4-5-95 as well as on 9-5-1996 and the orders received from the Dy. Director of Education regarding rejection of approval in the appointment of appellant as well as Shri Dandekar. The appellant submitted his written arguments on or about 18-7-97 and by then Mr. Dandekar was also not in service and he also pointed out that the Appeal filed by Mr. Kashid was dismissed by the School Tribunal. He stated in the written arguments that in case the Appeal filed by Mr. Kashid was allowed then only his discontinuation or non-appointment in the academic year 1996-97 would have been justified. The School Tribunal considered the rival arguments as well as the documents placed on record and held that the post of lecturer in the first academic year as well as in the 2nd academic year was reserved for Scheduled Tribe and the appointments made in both these academic years were on temporary basis as appointees were from open category. The appellant was aware that he was a temporary appointee and he had furnished an undertaking to that effect. He could not be treated to have been appointed on probation within the meaning of Section 5 of the Act and he could have no claim to be continued in the post of lecturer after the academic year 1995-96. Consequently, the Appeal was dismissed. The School Tribunal also noted that the appellant not being a candidate from any of the reserved category, he could not have relied upon the provisions of Rule 9(9)(a) of the Rules.