KANKAVALI SHIKSHAN SANSTHA AND ORS. versus M.R. GAVALI AND ORS.

Citation: [2005] SUPP. 5 S.C.R. 864 · Decided: 16-12-2005 · Supreme Court of India · Bench: RUMA PAL · Disposal: Dismissed

Judgment (excerpt)

A 
KANKA V ALI SHIKSHAN SANSTHA AND ORS. 
v. 
M.R. GAVALI AND ORS. 
DECEMBER 16, 2005 
B 
[RUMA PAL AND DR. AR. LAKSHMANAN, JJ.] 
Service Law: 
Maharashtra Employees of Private Schools (Conditions of Service) 
C Regulation Act, 1977-Maharashtra Employees of Private Schools Rules, 
1981-Rule 9(9)(a)--Candidate of OBC category temporarily appointed as 
teacher against backlog of reserved category for two consecutive academic 
years on account of non-availability of reserved candidate-Thereafter, 
services terminated and another OBC candidate who had served the institution 
earlier, appointed against the vacant post-Correctness of-Held: Jn absence 
D of candidate belonging to reserved category, Rule 9(9)(a) enjoins year to 
year appointment only if available candidate does not belong to backward 
class-Candidate appointed occupied reserved post, was of OBC category 
and also worked as full time teacher during academic years, thus, was 
entitled to regular appointment-Hence, order of High Court directing -
E reinstatement with continuity in service and back wages is upheld 
Respondent No.1 was appointed as Assistant Teacher on temporary basis 
for one academic year against the vacancy earmarked for reserved categor1 
on account of non-availability of reserved category candidate. He was again 
appointed for subsequent academic year. Respondent No. 1 filed an affidavit 
F that he was appointed on purely temporary basis and would not claim any 
permanent right on the said post and on basis of the same, Deputy Director of 
Education approved the appointment on totally temporary basis. Thereafter, at 
the end of the academic year, the appellant-institution terminated the services 
of respondent No.1 and appointed respondent No.3-0BC candidate who had 
G served in the appellant-institution for 20 years, in the said vacant post. 
Respondent No.1 challenged the termination order claiming permanency and 
continuity of service on the ground that he had completed two years of service 
and was entitled to the protection having attained the status of a permanent 
employee under section 5(2) of the Maharashtra Employees of Private Schools 
(Conditions of Service) Regulation Act, 1977 and that he being Hindu Mali 
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KANKA VALi SHIKSHAN SANSTHA-v. M.R. GA VALi 
865 
belongs to OBC category, as such was entitled to the benefit of Rule 9(9)(a) A 
of the Maharashtra Employees of Private Schools Rules, I981. Tribunal 
dismissed the appeal holding that respondent No. I was appointed on temporary 
basis and respondent No. 3 was entitled to be appointed on the said vacant 
post. High Court set aside the order of the Tribunal and directed respondent 
No.I to be reinstated in service with continuity in service and back wages. 
Hence the present appeal. 
B 
It was contended on behalf of the Management that the approval to the 
appointment of respondent No.I was given purely on temporary basis only for 
one academic year after which he was liable to be terminated and as such 
could not be entitled to reinstatement by way of permanency on the said post; C 
that respondent No. I cannot claim protection under Rule 9(9)(a); and that 
the High Court erred in relying on the judgment of this Court in Shakuntafa 
Ganpatsa Shirbhate v. Industrial Weaving Co-op. Society. 
Respondent No.I contended that he had been appointed under the 
provisions of Rule 9(9)(a) since no candidate belonging to the backward class D 
category was available during the academic year; that he was entitled to 
permanency and continuity in service; and that in view of the certificate issued 
by the principal of the appellant-institution that respondent No.I worked as a 
full time Assistant Teacher during the two academic years, the termination 
order cannot be sustained. 
Respondent No.2-Deputy Director of Education contended that the 
appellants rightly terminated the appointment of respondent No. 1 at the end 
of the academic year; that since the vacancy was earmarked for reserved 
category other than OBC category as there was no backlog ofOBC category 
E 
at the relevant time, it should not have been treated as clear vacancy for OBC F 
category but for reserved categories of which the backlog existed; that the 
provisions of section 5(2) of the Act and Rule 9(9)(a) of the Rules are not 
applicable in the instant case; and that the appointment of respondent No.3 
was as per the Rules and is to be upheld because he was already in permanent 
service and was el

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