AR.Lakshmanan, J. - (1.) LEAVE granted.
(2.) KANKAVALI Shikshan Sanstha and two others are the appellants in this appeal. This appeal was filed against the judgment and final order dated 05.02.2004 passed by the High Court of Bombay in writ petition no. 3000 of 2003 whereby the High Court allowed the said writ petition of the first respondent herein - Manohar Ramchandra Gavali by setting aside the order dated 31.03.2003 of the School Tribunal, Kolhapur and directed that the first respondent shall be entitled to reinstatement in service with continuity of service and back-wages. The short facts of the case are as follows:- 3.1. Respondent no. 1 - M.R. Gavali was appointed as Assistant Teacher in the S.M.Junior College w.e.f. 18.06.1994 on purely temporary basis for the academic year 1994-1995 i.e. for the period from 18.06.1994 to 02.05.1995 against the backlog of SC/ST and NT category. Clauses 2,3,7 and 8 of the appointment order read as follows:- "2. Your appointment is purely temporary for a period from 18.06.1994 to 02.05.1995 in the leave/deputation vacancy and after expiry of the above period your services shall stand terminated without any notice. OR 3. The terms of your employment and condition of service shall be as laid down in the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and the rules made thereunder. 7. Your appointment is conditional subject to the approval of the Education Department. 8. This post is reserved for Schedule Caste and if candidate of that category will be available, your service will be terminated." "2. The Deputy Director of Education approved the said appointment by his letter of approval dated 04.04.1995. 3. The appellant-Institution sought to fill up the backlog against the reservation by publishing advertisement in the newspapers. However, the particular backward class candidate was not available. On account of non-availability of the ST reserved category candidate, respondent no. 1 - M.R. Gavali was again appointed temporarily on 08.06.1995 for the academic year 1995-96. It was made clear that the said appointment is liable to be terminated as and when a candidate from the backward class is made available and that the said appointment was subject to the approval of the Education Department. Respondent no.1 submitted an affidavit on 24.11.1995 stating that his appointment in the 3rd appellant college was only till 02.05.1995 and that his appointment is totally temporary and on the backlog of SC, ST and NT and only for the academic year 1995-96. On 31.01.1996, respondent no. 1 again submitted an affidavit on a bond paper stating that the said appointment is temporary and that he will not claim any permanent right on the said post. On the basis of the aforesaid affidavit, the Deputy Director of Education approved the said appointment on totally temporary basis for the year 1995-96 due to the backlog of SC/ ST candidate." Despite repeated efforts, due to nonavailability of SC/ST reserved category candidate, and as the said post was filled on purely temporary basis for the academic year 1995-1996, the appellant issued a notice of termination on 26.03.1996 to respondent no.1 terminating his services at the end of the academic year viz., from 30.04.1996. The termination notice reads thus:- JUDGEMENT_575_JT10_2005Html1.htm Respondent no.3 - P.B.Lohar (respondent no.5 in the High Court) who belongs to the OBC category and being duly qualified was transferred since 10.06.1996 in the said vacant post as he had served in the appellant-Institution for 20 years at Secondary School. Being aggrieved by the order of termination dated 26.03.1996, respondent no.1 approached the School Tribunal, Kolhapur by filing appeal no.50 of 1996 under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter referred to as the "M.E.P.S. Act"). The Tribunal, vide judgment and order dated 31.03.2003, dismissed the said appeal filed by respondent no.1 and held that in view of the documentary material placed on record, respondent no.1 was appointed on a temporary basis and that P.B. Lohar respondent no.3 in this Court (respondent no.5 in the High Court) was entitled to be appointed on the said vacant post. Respondent no.1 challenged the order passed by the Tribunal dated 31.03.2003 in the High Court by filing a writ petition. The High Court allowed the said writ petition by the impugned order dated 05.02.2004 by setting aside the order dated 31.03.2003 of the School Tribunal, Kolhapur and directed that respondent no.1 shall be entitled to reinstatement in service with continuity of service and back-wages. Aggrieved by the order dated 05.02.2004, the appellant-Management has filed the above appeal in this Court.
(3.) LEARNED counsel appearing for the Management Mr. Shivaji M. Jadhav submitted that the High Court has gravely erred in not considering the documentary evidence on record which, inter alia, includes the affidavits given by respondent no.1 himself stating that he was appointed on purely temporary basis and that he would not claim any right of permanency on the said post. It was further submitted that the approval to the said appointment of respondent no.1 was given purely on temporary basis only for the academic year 1995-96 and, therefore, respondent no.1 could not be entitled to reinstatement by way of permanency on the said post. Learned counsel for respondent no.1 - Mr. M.D. Adkar submitted that the first respondent had been appointed under the provisions of Rule 9(9)(a) since no candidate belonging to the backward class category was available during the year 1995-96 and that the tenure of his appointment would come to an end upon the conclusion of the academic year upon which his services would end. The respondent filed an appeal under Section 9 of the M.E.P.S. Act before the School Tribunal contending that he had completed two years of service and was entitled to the protection of having attained the status of a permanent employee under Section 5(2) and that since the respondent belongs to the Hindu Mali community which is recognized as an OBC he was entitled to the benefit of Rule 9(9)(a) of the Maharashtra Employees of Private Schools Rules, 1981 (hereinafter referred to as the "M.E.P.S. Rules") and in that capacity to permanency and continuity of service.;