Judgment:
Oral Judgment:
1. Rule made returnable forthwith. Head the matter finally by consent of the learned counsels appearing for the parties.
2. This petition challenges the judgment and order dated 30.06.2012 passed by the School Tribunal, allowing Appeal STN No. 73/2000, filed by the Respondent No.2 “ Employee Ku. Sheela Dhanuji Meshram, under Section 9 of the M.E.P.S. Act, challenging her termination from service with effect from 01.07.2000. The School Tribunal has recorded the finding that the Management has failed to establish that the post was reserved for scheduled tribe candidate and therefore, the Education Officer refused to grant approval, which has resulted in termination of the service of respondent no.2.
The facts of the case in detail are as under;
3. The initial appointment of the respondent no.2 was on temporary basis as an Assistant Teacher for one academic session from 01.07.1998 to 30.04.1999. This was approved by the Education Officer by his order dated 30.04.1999. The respondent no. 2 was terminated by an order dated 30.04.1999 and thereafter a fresh order of appointment was issued on 01.07.1999 appointing the respondent no. 2 on probation for a period of two years with effect from 01.07.1999. The Education Officer granted his approval to this appointment only for one academic session subject to the fulfillment of the backlog of the reserved category. Immediately on the next date i.e., on 31.03.2000, the services of the respondent no. 2 were terminated by giving notice with effect from 30.04.2000 on the ground that there exists a backlog. Though the respondent no. 2 has denied the receipt of this notice, she admits her termination orally with effect from 01.07.2000 which was made the subject matter of challenge in the appeal before the School Tribunal.
4. Initially the School Tribunal dismissed the appeal by its judgment and order dated 16.03.2006. The respondent no. 2 preferred Writ Petition No. 3789/2006 before this Court, which was decided by judgment and order dated 18.02.2011. This court set aside the order of the School Tribunal and remanded the matter back for reconsideration, without being influenced by any of the observations made by this Court in the judgment. It was observed in the said judgment that the Education Officer had not come up with a specific stand, for which backward class category, the post was reserved. In the absence of there being any positive stand by the Education Officer and the authenticated material on record, it was held that the tribunal could not have recorded the finding that the post was reserved for S.T., VJ and NT category. It is after the remand of the matter, that the School Tribunal has allowed the appeal by its impugned judgment and order dated 30.06.2012.
5. After remand of the matter, the Education Officer filed his reply dated 17/18082011 before the School Tribunal to justify its action of refusal to grant approval. It is the stand taken that out of 8 posts of teachers, the management filled in 4 posts from the candidates belonging to Scheduled Caste category. As per the roster, next post was to be filled in from the Scheduled Tribe category. The management goes on making appointment without getting the roster prepared and approved.
6. On 18th February, 2014, this court passed an order as under.
œThe learned counsel for the respondent No.3 submits that the reply would be filed during the course of the day. The respondent No.3 shall also make available the concerned record for the perusal of this Court on the next date.
The office to verify whether the record of the School Tribunal is received by it, and if not, give the intimation to the Tribunal for forwarding the record to this Court by the next date.
S.O. to 2522014?
7. In response to the aforesaid order, the Education Officer filed an affidavit dated 18.02.2014, stating in paragraphs nos. 2 and 3 as under;
œ2] It is respectfully submitted that, the appointment of respondent no.2 was twice approved for a specific period of 10 months i.e. from 01.07.1998 to 30.04.1999 and 01.07.1999 to 30.04.2000 as there was backlog of S.T., and V.J. N.T., category as per 100 point roster policy. At this stage, it is pertinent to note that, though it is obligatory on the petitioner to submit duly certified copy of roster by the backward class cell, however, till date the same has not been submitted to the office of answering respondent. A copy of G.R., dated 29.03.1997 is annexed herewith and marked as ANNEXURE R-31
3] It is respectfully submitted that, the appointment of respondent no. 2 was approved by the then Education Officer subject to removal of backlog and such approval can be granted to save the students from the possible loss of education. Thus, the answering respondent justified in refusing approval to the appointment of respondent No.2?
8. The question as to whether the appointment of an employee is to be treated as on probation for a period of two years in terms of the order of appointment depends upon the facts and circumstances of each case. Merely because an employee was appointed on probation for a period of two years, that would not make him entitled to continue in service as so as to acquire deemed confirmation in terms of sub-section (2) of section 5 of the M.E.P.S. Act. The employee approaching the School Tribunal under Section 9 of the M.E.P.S. Act challenging his termination during the period of probation, will have to establish that his appointment was in accordance with sub-section (1) of Section 5 of the M.E.P.S Act for open category candidate and in addition to it, the compliance of sub-rule (8) and (9)(a) of Rule 9 of M.E.P.S. Rules in respect of vacancies which are reserved for any of the categories for backward class candidates specified in sub-rule (7) of Rule 9. If such compliance is not established then even if the order states that it is on probation, the same will have not confer any right upon the employee to get the deemed confirmation in service beyond the period of two years.
9. In the present case, it was the stand of the Education Officer before the School Tribunal as is reflected in the communication dated 08.03.2001 (Exh.11) that the approval to the appointment of the respondent no. 2 was granted for a fixed period, initially from 01.07.1998 to 30.04.1999 and subsequently from 01.07.1999 to 30.04.2000, subject to fulfillment of backlog. The Management did not make any efforts to fulfill the backlog and hence the approval was not granted. It is not disputed that the Management did not prepare the roster before making the appointment of the respondent No.2. As per the roster, the post should have been filled in by a candidate belonging to Scheduled Tribe category. This position was not brought to the notice of this Court when the matter was earlier remanded. The respondent no.2 does not belong to Scheduled Tribe category. It is the further stand taken by the Education Officer that the surplus teachers from the list maintained by the Education Department were also required to be absorbed and the Management was directed to absorb one surplus teacher Ku. Sushila Sahare by communication dated 27.08.1999. Accordingly she was absorbed but subsequently she was again repatriated to her original post.
10. In view of the aforesaid position, if the appointment of respondent no. 2 is to be treated as from œopen category?, the mandatory requirement of proviso to sub-section (1) of Section 5 to ascertain from the Education Officer whether there is any suitable candidate available on the list of surplus persons maintained by him for absorption, was not followed. The appointment was made without preparing the roster and even if it is treated that the appointment of the respondent no. 2 was as a candidate belonging to Scheduled Caste category, it is not established that the mandatory requirement of sub-rule (8) and (9) (a) of Rule 9 was not followed. Thus, the appointment of the respondent no. 2 was not in accordance with the provisions of law. In view of this, the School Tribunal has committed an error in holding that the appointment was in the post which was not reserved for any of the categories of backward class candidates.
11. In view of above, the writ petition is allowed. The judgment and order dated 30.06.2012 passed by the School Tribunal in Appeal STN No. 73/2000 is hereby quashed and set aside. The said appeal is dismissed. No orders as to costs.