The court emphasized the requirement of issuing an advertisement even while making appointments in the Open Category, ensuring that every eligible person is made aware of the vacancy available, which is the barest minimum requirement of the concept of equality enshrined in Articles 14 and 16 of the Constitution of India.

JUDGMENT

1. Petitioner 1 - Late Sanjay Gandhi Shikshan Prasarak Mandal ("Society, for short) is managing petitioner 2 - Shri Rajeshwar Secondary School and Junior College. Petitioners shall be collectively referred to as the Management.

2. The Management is questioning the judgment dtd. 29/3/2010, rendered by the Presiding Officer, School Tribunal, Amravati ("Tribunal") in Appeal 98/2009, whereby the appeal preferred by respondent 2 - Mr. Subhash Rambhau Billari ("employee"), challenging the termination dtd. 16/8/2008 is allowed and the Management is directed to reinstate the employee on the post of junior college lecturer/teacher and to pay 50% (Fifty Percent) back wages for the period 16/8/2008 till the date of reinstatement alongwith other service benefits.

3. The Management contends that the employee was appointed on 25/10/2004 to teach English on clock work basis. The employee was not possessing the eligibility qualification as he did not hold Masters Degree in second division, and that the appointment or engagement was an adhoc arrangement. The Management contends that since an eligible and otherwise suitable candidate to teach English subject in the junior college was not found, the employee continued to work on clock work basis, till he abandoned the employment and did not report for duty after 8/5/2008, although the employee did attend the school to attend certain functions including the flag hoisting ceremony on 15/8/2008.

4. According to the Management, Mr. R.A. Wakudkar, who was holding the prescribed qualification, and was otherwise suitable, was appointed initially on clock work basis on 26/6/2008 and was subsequently given regular appointment as Shikshan Sevak from 1/7/2009. The Management claims that the employee preferred appeal before the Tribunal falsely contending that he was orally terminated, and the fact that Mr. R.A. Wakudkar was appointed in the interregnum, was suppressed. In response to the notice received from the Tribunal, the Management highlighted the factual position noted supra. However, the appeal preferred by the employee is allowed for reasons which are unsustainable in law. The Management contends that the Tribunal did not appreciate that the appointment of the employee was not in accordance with sec. 5 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 ("Act", for short) nor was the employee qualified to teach subject of English. The Management contends that the Tribunal erred in discarding the order of appointment on the premise that the said order does not disclose the date of issuance. The Management further contends that the Tribunal failed to appreciate that the employee was not terminated as is alleged, and that he voluntarily abandoned duty, and Mr. R.A. Wakudkar was duly appointed in place of the employee to teach the subject of English.

5. The learned counsel for the Management Mr. Pushkar Deshpande canvased submissions consistent with the stand of the Management before the Tribunal, and further relied on certain decisions, to which a reference shall be made at an appropriate stage, to the extent necessary.

6. The employee has filed a brief affidavit in response. The employee asserts that the certified copy of the roster duly verified by the Commissioner, Amravati Region, Amravati, which the employee obtained under the Right to Information Act, reveals that three posts of teachers were vacant, one in the high school and two in junior college, out of which one post is reserved for Scheduled Tribe and two are for Open Category. The affidavit further states that one post is occupied by Mr. S.L. Gote and the appointment is duly approved, and the post which the employee occupied is shown held by Mr. R.A. Wakudkar and the appointment is not approved, since his appointment is without any advertisement and compliance of the required procedure. It is further asserted in the affidavit that the post of lecturer in junior college is held by Ms Sunita B