2005 Supreme(SC) 1618

2005(8) Supreme 689
SUPREME COURT OF INDIA
(From Bombay High Court)
Mrs. Ruma Pal & Dr. AR. Lakshmanan, JJ.
Kankavali Shikshan Sanstha and Ors. —Appellants
versus
M.R. Gavali and Ors. —Respondents
Civil Appeal No. 7553 of 2005
(Arising out of SLP (C) No. 12153 of 2004)
Decided on 16-12-2005
Counsel for the Parties :
For the Appellants : Shivaji M. Jadhav, Advocate.
For the Respondents : M.D. Adkar, Vijay Kumar, Vishwajit Singh and V.N. Raghupathy, Advocates.

IMPORTANT POINT
In absence of a candidate belonging to the reserved category concerned, Rule 9(9)(a) of Maharashtra Employees of Private Schools Rules enjoins year to year appointment only if available candidate does not belong to back ward class.

Headnote:Service Law—Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977—Section 9—Maharashtra Employees of Private Schools Rules, 1981—Rule 9(9)(a)—In the absence of a candidate belonging to the reserved category for which the post existed, rule enjoined year to year appointment only if a available candidate did not belong to backward class—Respondent, a backward class candidate was appointed for one academic year on temporary basis against vacancy reserved for an ST Candidate as at that stage no candidate belonging to ST was available—Subsequently Respondent No. 3 who belonged to OBC category was transferred in said vacant post as he had served in appellant institution for 20 years—Services of respondent No. 1 was terminated—High Court allowing writ directed respondent No. 1 entitled to reinstatement in service—Appeal—Respondent belonging to a backward class was entitled to a regular appointment—Taking into account all relevant facts, High Court arrived at accurate and correct conclusion—Respondent No. 3 had now retired on 28-2-2005—Respondent No. 1 to be appointed on the post with back wages from 1-3-2005.

       Held : The law laid down by this Court on the interpretation of Rule 9(9)(a) is in our view resolves the controversy in the present case. The first respondent was appointed in 1994. The vacancy was reserved for an ST candidate. At that stage there was no candidate belonging to ST available. There is no dispute about the fact that the first respondent belongs to the Hindu Mali community which is an OBC. In the circumstances, in terms of the provisions of Rule 9(9)(a) since no other candidate belonging to ST was available, the first respondent was entitled to appointment on a regular basis. This Court, in the above case, held that in the absence of a candidate belonging to the reserved category concerned, the rule enjoins year to year appointment only if a available candidate does not belong to a backward class. The respondent belonging as he does to a backward class was entitled to a regular appointment. The subsequent appointment of P.B. Lohar, the 3rd respondent herein again, operates to displace the first respondent because in any event much prior thereto the first respondent had duly crystallised the right. In any event, it has not been demonstrated before this Court that the 3rd respondent was appointed subsequently in the vacancy created by the termination of the first respondent. (Para 13)

       In our opinion, the High Court taking into account of the relevant facts of the case arrived at an accurate and correct conclusion as regards the rights of respondent No.1. It may not be out of place to mention that the post occupied by respondent No.1 was a reserved post and as per the rules in the case of certain contingencies of non-filling of the posts, a person belonging to some other reserved category can occupy the said post and respondent No.1 being belonging to OBC could have occupied the said post. However, the appellant removed respondent No.1 and surprisingly transferred respondent No.4 to the said post and as such respondent No.4 also belongs to the same reserved category as of respondent No.1. It may not also be out of place to mention that in the affidavit filed by the State, the State has specifically pointed out the failure on the part of the appellant to abide by the rules governing the appointment. It has been demonstrated before us that the third respondent was appointed subsequently in the vacancy created by the termination of the first respondent. It was also submitted at the time of hearing that the third respondent has retired from service. The first respondent lost his job on 26-3-1996 in spite of Rule 9(9)(a) of the M.E.P.S. Rules and the judgment of this Court in the case of Shakuntla Ganpatsa Shirbhate Vs. Industrial Weaving Co-op. Society & Ors. (supra). During the course of arguments, a statement was made on behalf of respondent No.1 that respondent No.3 - Mr. P.B. Lohar, has retired and such statement was not contradicted by the counsel for the Management. During the course of arguments, we indicated that respondent No.1 will be entitled for the job with immediate effect. However, the back-wages can be granted only from the date on which the third respondent - Mr. P.B. Lohar has retired. Mr. S.M. Jadhav, learned counsel appearing for the appellants informed us that Mr. P.B. Lohar retired on 28-2-2005. In such circumstances, we are of the opinion that the direction should be issued to the appellant to take back respondent No.1 in service in the vacancy caused due to the retirement of respondent No.3 and to allow him to discharge the function on the post to which he was appointed. We make it clear that respondent No.1 will not be entitled to back wages from the date of his termination till his appointment. He will be entitled for the job with immediate effect with back wages only from 1-3-2005. We feel that this direction of ours would meet the ends of justice. (Paras 17 to 20)