Sanjay Vaman Chavan Vs the President, Shiposhi Shikshan Prasarak Mandal and Ors.

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AGK

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.8223 OF 2004

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Digitally signed byATUL ATUL GANESH GANESH KULKARNI KULKARNI Date: 2024.02.29 17:26:19 +0530

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Sanjay Vaman Chavan,

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Age 35 years, A/p: Shiposhi,
Taluka Lanja, District: Ratnagiri… Petitioner

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V/s.

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1.The President,

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Shiposhi Shikshan Prasarak Mandal
A/p.: Shiposhi, Taluka Lanja,
District: Ratnagiri

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2.The Secretary,
Shiposhi Shikshan Prasarak Mandal
A/p.: Shiposhi, Taluka Lanja,
District: Ratnagiri

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3.The Chairman, School Committee Shiposhi Shikshan Prasarak Mandal A/p.: Shiposhi, Taluka Lanja, District: Ratnagiri

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4.The Head Master,

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Nya. V.V. Athalye Vidyamandir & Jr.
College, Shiposhi, Taluka Lanja,
Distrcit Ratnagiri

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5.The Education Officer

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(Secondary), Zilla Parishad,
Ratnagiri.

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6.The State of Maharasthra, through the Additional Government Pleader, High Court, Bombay.

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7.The learned Presiding Officer, School Tribunal, Kolhapur. … Respondents

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1

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Mr. Nitin A. Kulkarni for the petitioner.

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Ms. Lata Desai, Senior Advocate with Dr. Pallavi
Divekar & Mr. Siddhant Varunkar i/by Dr. Pallavi
Divekar for respondent No.2.

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Mr. S.D. Rayrikar, AGP for respondent Nos.5 and
6/State.

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CORAM:AMIT BORKAR, J.

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DATED:FEBRUARY 23, 2024

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ORAL JUDGMENT:

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1.Rule. The matter is already shown on the final hearing
board as per the order dated 27 June 2013.

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2.The petitioner (Junior Clerk) is challenging the order of the
School Tribunal dismissing the appeal under Section 9 of the
Maharashtra Employees of Private Schools (Conditions of Service)
Regulation Act, 1977 ("the said Act" for short) seeking relief of
reinstatement with back wages.

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3.According to the petitioner, he was appointed to the post of
Junior Clerk in respondent No.4/School. According to him, his
father was Chairman of the Student's Aid Committee and Founder
of respondent No.1/society who died on 12 September 1987. The
petitioner was in need of service and was qualified for the post of
Junior Clerk. He applied to the respondent No.1/Society for his
appointment on compassionate grounds. The respondent/
Management accordingly passed a resolution on 21 August 1991

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2

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and issued an appointment order on 1 October 1991. The
petitioner was initially appointed for the period from 1 October
1991 to 30 April 1992. The petitioner was thereafter appointed on
probation for two years by appointment order dated 8 April 1992.
According to the petitioner, his appointment was on permanent
and vacant post. However, relying on communication issued by the
Education Officer dated 22 September 1992, the Management
terminated the services of the petitioner on 26 September 1992.

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4.Initially, the petitioner challenged termination by way of Writ
Petition No.4181 of 1992. However, he withdrew the writ petition
and filed an appeal under Section 9 of the said Act.

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5.Respondent No.1/Management contested the appeal by
pointing out that the petitioner's father died on 12 September
1987 The petitioner submitted his applications on 15 August 1991
and 21 September 1991 and was, therefore, not eligible for
appointment on compassionate grounds. The Management
appointed the petitioner to the post of Junior Clerk with effect
from 1 October 1991 till 30 April 1992, subject to the approval of
the Education Officer. The Education Officer rejected approval on
various grounds mentioned in the order. It is also contended that
the due procedure required to be followed under Section 5(1) of
the said Act was not followed while appointing the petitioner.
According to the Management, the post of Senior Clerk was
occupied by an open category candidate and, therefore, the post of
Junior Clerk was reserved for a candidate belonging to the SC
category as per the 100-point roster.

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3

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6.The Education Officer filed a reply stating that the
Resolution passed by the Management was for the appointment of
the petitioner on a compassionate basis. However, in the
appointment order, the petitioner was appointed against the post
reserved for a candidate belonging to the SC category. The
approval for the petitioner's appointment was initially refused and,
therefore, the petitioner is not entitled to the relief.

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7.The School Tribunal after granting the opportunity of
hearing to both sides dismissed the appeal on the following four
grounds: (i) due procedure as required under Section 5(1) of the
said Act by issuing advertisement was not followed before the
appointment of the petitioner; (ii) the appointment order dated 1
October 1991 indicates that the petitioner was appointed against a
post reserved for candidate belonging to SC category; (iii) the
Education Officer refused approval to the post of the petitioner by
order dated 19 April 1991 as per Rule 9(9)(b) of the Rules; and
(iv) the Education Officer by a communication dated 16 November
1991 had informed the Management about three surplus Clerks
who were required to be absorbed. The School Tribunal based on
aforesaid grounds rejected the appeal. Hence, the petitioner has
filed a present writ petition.

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8.Learned advocate for the petitioner invited my attention to
the impugned order, resolution, appointment orders dated 1
October 1991 and 8 April 1992 and order refusing approval dated
26 September 1992 to urge that the reasons mentioned in the
termination order have not been held to be improper by the School
Tribunal. The School Tribunal could not have dismissed the appeal

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4

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on the grounds that is not mentioned in the termination order. He
submitted that the roster placed before the School Tribunal
indicates that the post of Junior Clerk was reserved for open-
category candidates. He submitted that initially the approval was
granted to the petitioner. Hence, the School Tribunal was not
justified in dismissing the appeal.

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9.Per contra, learned Senior Advocate on behalf of the
Management/respondent No.1 invited my attention to the case
pleaded by the petitioner to the effect that the father of the
petitioner was a Founder Member and Chairman of the Sports
Committee in the school. He died in the year 1987. The petitioner
applied in the year 1991 and, therefore, he was not eligible for
appointment on a compassionate basis. She submitted that the
original Resolution of the appointment of the petitioner was
subsequently modified to insert the expression "compassionate
appointment". There is a discrepancy in the Resolution and the
order of appointment. The initial appointment of the petitioner
was sent for approval to the Education Officer which was rejected
by giving reasons which are mentioned by the School Tribunal.
Relying on the judgment in A. Shanmugam v. Ariya
Kshatriya Rajakula Vamsathu Madalaya Nandhavana
Parilanai Sangam & Ors. reported in (2012) 6 SCC 430, she
submitted that the petitioner is invoking extraordinary
constitutional jurisdiction and, therefore, his conduct dis-entitles
him from seeking any relief as the petitioner has failed to disclose
material facts and documents. She, therefore, submitted that the
writ petition is liable to be dismissed.

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10. Learned AGP invited my attention to the reply filed by the
Education Officer to urge that the approval was rejected by the
Education Officer since the appointment of the petitioner was not
in accordance with law and, therefore, the Management has
rightly terminated the services and the School Tribunal’s order
does not require interference.

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11. Having heard Advocates for the parties, in my opinion, the
judgment and order of the School Tribunal does not suffer from
any legal infirmity.

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12. As stated earlier, the School Tribunal has dismissed the
appeal by assigning four reasons, which are stated in aforesaid
paragraph No.6. The first reason assigned by the School Tribunal is
the absence of due procedure by the Management. In this context,
it needs to be noted that according to the petitioner, his
appointment was on a compassionate basis. Once it is the
petitioner's positive case that his appointment was on a
compassionate basis, he cannot expect to treat him as a regular
candidate. It is not in dispute that the petitioner's father was not
an employee of the respondent No.1/Trust. Moreover, the
petitioner's father expired in the year 1987 and he applied for
appointment only in the year 1991. Therefore, he could not have
been appointed on a compassionate basis. The Resolution placed
on record indicates that the petitioner was appointed on a
compassionate basis. However, the order of appointment placed on
record indicates that the petitioner was appointed against the
candidate belonging to the backward class. The net result of the
discussion is that the petitioner was ineligible to be appointed on a

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compassionate basis. Even if he is treated as an open category
candidate, undisputedly no procedure for appointment such as
advertisement and interview was followed before the petitioner's
appointment and, therefore, the findings of the School Tribunal
that the petitioner's appointment was without following due
process of law need not be interfered with.

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13. The next ground for dismissal of the appeal is that the
appointment of the petitioner is against the post reserved for
candidates belonging to the backward class. To consider the
validity of the said ground, the reply filed by the respondent needs
to be considered about the documents on record. The order of
refusal to approve the petitioner's appointment dated 16
November 1991 refers to the proposal of the Management dated
19 October 1991. In the proposal, the institution stated that the
institution had carried forward the backlog of reservations and,
therefore, relying on Rule 9(9)(b) of the 1981 Rules, the Education
Officer refused to approve the petitioner's appointment. Though
the learned Advocate for the petitioner submitted that as per the
roster, the point of Junior Clerk is reserved for candidates
belonging to the open category, in my opinion, the other grounds
assigned by the School Tribunal for dismissal of the appeal are
sufficient for refusing to interfere with the order of the School
Tribunal.

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14. The next ground for dismissal of the appeal is the availability
of surplus candidates and its communication by the Education
Officer to the Management which were required to be absorbed. In
that regard, there is no dispute on the said fact. However,

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according to the petitioner, in the absence of such ground being
mentioned in the order of termination, the School Tribunal could
not have dismissed the petitioner's appeal. In my opinion, the
order dated 16 November 1991 refusing to approve the petitioner's
appointment on the ground of failure to absorb three surplus
candidates required as per Circular dated 3 April 1991 the findings
recorded by the School Tribunal need not be interfered with.

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15. On over consideration of the facts of the case, it is evident
that once the petitioner claims to be appointed on a compassionate
basis and fails to prove due procedure and eligibility, no legal
infirmity in the School Tribunal’s order is found. The view taken by
the School Tribunal is a possible view. Therefore, no interference in
the writ jurisdiction is called for.

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16. The writ petition is, therefore, dismissed. No costs.

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(AMIT BORKAR, J.)

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Sanjay Vaman Chavan v. the President, Shiposhi Shikshan Prasarak Mandal and Ors.

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Sanjay Vaman Chavan v. the President, Shiposhi Shikshan Prasarak Mandal and Ors.

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