Oral Judgment:

M.S. Karnik, J.

1. Heard learned counsel for the petitioner and learned Additional Government Pleader appearing for the respondent- State.

2. The petitioner by this petition under Article 226 of the Constitution of India prays that the order dated 22/05/2018 passed by the respondent no.1 be quashed and set aside by which recovery was ordered stating that the petitioner was wrongly given the benefit of Time Bound Promotion Scale (‘TBPS’, for short) earlier than the date otherwise due. The petitioner further prays for a direction to the respondents to grant senior scale and other benefits of service to the petitioner from the initial date of his appointment i.e. 02/01/1995.

3. The facts of the case in brief are that by an order dated 23/12/1994, the petitioner was appointed on a clear and vacant post of Assistant Teacher reserved for Scheduled Caste (‘SC’, for short) category in respondent no.3- School. The petitioner belongs to SC category. The petitioner was appointed on probation with effect from 02/01/1995. The appointment was by following the procedure prescribed under the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (‘MEPS Act’, for short). Since his initial posting on 02/01/1995, the petitioner has been in continuous service without any break.

4. In 2007, the petitioner became eligible for TBPS on completion of 12 years on the post of Assistant Teacher. By the order dated 21/02/2015, respondent no.1 had directed recovery of increments granted to the petitioner from the year 1995 to 1999 and held him entitled to TBPS from 13/06/2011. The petitioner challenged the said order in Writ Petition (L) No. 3286 of 2017 wherein respondent no.1 agreed to withdraw the said order and to pass a further order after hearing the petitioner. Respondent No.1 passed the order dated 22/05/2018 referring his request which is impugned in this petition.

5. Learned counsel for the petitioner submits that the benefits under the TBPS have not been granted to the Petitioner on the ground that his initial appointment for a period of 4 years was on yearly basis. Secondly, one Mr. Vinayak Prabhu who belongs to the open category and was working on the said post on a temporary basis for the academic year 1994-95 and whose services were terminated on account of the appointment of the petitioner, had challenged his termination of service in Court. It is submitted that the petitioner was regularly appointed following due procedure.

6. Learned Additional Government Pleader appearing on behalf of the respondent-State invited our attention to the affidavit in reply affirmed by Dr. Anil Madanji Jadhao working as Joint Director (In-charge) of respondent no.1. According to learned Additional Government Pleader, the petitioner was appointed on 20/05/2000 as a regular Assistant Teacher in respondent no.3- Technical School. The petitioner has accepted the said regular appointment and has not, in the year 2000 or anytime thereafter until filing of the petition, assailed the order of his appointment on regular post as an Assistant Teacher in the respondent no.3- Technical School. The petitioner’s appointment for initial 4 years is a contract of service between the parties and the petitioner having accepted the said contract on terms mentioned therein, now after a long period of 19 years cannot dispute the contract or assail the benefits flowing from the said contract of service. Learned Additional Government Pleader submitted that the petitioner is estopped from now assailing the terms of service contract after a period of 19 years from the date of permanent appointment on clear vacant post.

7. Learned AGP further submitted that since 02/01/1995, the appointment of the petitioner was a temporary appointment as an Assistant Teacher and was on yearly basis till 1998-1999. The appointment of the petitioner was not on clear vacancy but was on a post on which one Mr. Vinayak Prabhu was appointed by respondent no.4- Management of respondent no.3 – School. The said Mr. Vinayak Prabhu being aggrieved by his termination of service had filed the cases before the Tribunal as well as before this Court. It is the submission that appointment of the petitioner on full time clear vacant post of Assistant Teacher for backward class was made only in the year 2000 after the petition filed by Mr. Vinayak Prabhu was disposed of vide order dated 05/10/1999 passed by this Court. Our attention is invited to the stand of respondent no.1 in paragraphs 8 to 12 of the affidavit in reply which read thus :

                   “8. I say that as the 3rd Respondent is an Aided Technical School and salary/expenses for all the appointments made in accordance with legal procedures are borne by the funds received from public funds managed by the State Government. I say that as the appointment made by the 3rd and 4th Respondent of one Mr. Prabhu was not in accordance with the procedures and a valid appointment as a candidate of open category (Mr. Prabhu) was appointed on reserved post his services were terminated and he had assailed the said termination leading to litigation which was concluded by an order passed on 05-10-1999 in W.P. No. 4311 of 1997.

                   9. As during the termination of Mr. Prabhu and pendency of the litigation in respect of the said termination there was a requirement of an Asstt. Teacher on the said post. I say that hence the Petitioner was appointed on the said post and this fact was known to the Petitioner. I say that however during pendency of the said litigation arising from termination of Mr. Prabhu no permanent appointment could have been made by the department. However, looking at the requirement of an Asstt. Teacher Petitioner was given temporary appointment also commonly termed as unclear vacancy. I say that hence the appointment of the Petitioner was on yearly basis and not regular appointment. I say and submit that it is only after the conclusion of the litigation initiated by Mr. Prabhu, the Petitioner was given a permanent appointment on clear vacancy post available and reserved for backward class víde order dated 20-05-2000.

                   10. I say that the Petitioner by this Petition is seeking for reliefs pertaining to Senior Pay scale (12 years benefit) to be made applicable to his appointment w.e.f. 1995, when he was not appointed on a regular/clear vacancy post. I say & submit that as stated in foregoing paragraphs his appointment from 1995 until 1999 was on temporary basis and on an unclear vacancy post. I say that as per G.R. dated 25-03-1994 r/w. 08-03-1999 issued by 5th Respondent State of Maharashtra, no seniority benefits (12 years benefit) can be granted/availed by an appointee appointed on unclear post and whose services are not permanent in nature as is the case with the Petitioner.

                   11. I say that the Petitioner was well aware of the temporary nature of his appointment from 1995 to 1999 and has accepted the said temporary appointment from year to year basis without any grievance being made till date of this Affidavit. I say that the Petitioner was also aware that his service will be considered as permanent only from the date of this appointment as permanent Asstt. Teacher in the year A.Y. 1999-2000 and has not challenged the said appointment for last more than 20 years.

                   12. I say that if any relief as is prayed for is granted to the Petitioner in this case all other temporary appointed teachers will also take the benefit of this order and claim for benefits which may not be possible for the state Government. I say that this has to be done in this fashion as for sake of argument it may be considered that termination of Mr. Prabhu was set aside by the competent authority/Hon'ble High Court then the answering respondent would have been compelled to grant all benefits including seniority salary pension etc., to Mr. Prabhu and in that case the petitioners services would have been terminated as there was no vacancy for two appointments to be made on one available post.”

8. Having heard learned counsel, we are of the considered opinion that there is no reason to deprive the petitioner of the benefits of TBPS with effect from the initial date of appointment i.e. 02/01/1995. The contention of the respondent no. 1 that the petitioner was not appointed on a clear and vacant post is completely misconceived. The facts clearly indicate that prior to the appointment of the petitioner on probation, one Mr. Vinayak Prabhu from the open category was appointed to the post which was reserved for the SC category. Since the post was reserved for the SC category, the Management proceeded to terminate the services of Mr. Vinayak Prabhu. It is upon termination of the services of Mr. Vinayak Prabhu that the petitioner who belongs to the SC category was appointed in accordance with the provisions of MEPS Act and the Rules framed therein. It is not the stand of the respondents that the appointment of the petitioner is not in accordance with the procedure. Even according to the respondents, the post was reserved for SC candidate on which Mr. Vinayak Prabhu, belonging to the open category was appointed. Mr. Vinayak Prabhu challenged the termination of his services before the Tribunal. The challenge before the Tribunal failed. During the pendency of the Petition before this Court, consent terms were filed whereupon the said Mr. Vinayak Prabhu was accommodated against another post which was lying vacant. Therefore, it is only because Mr. Vinayak Prabhu had challenged his termination, respondents are regarding the appointment of the petitioner on a temporary basis. It is for this reason that the respondents say that the appointment is a contractual one.

9. The fact that Mr. Vinayak Prabhu was appointed on another post under the same Management indicates that the post over which the petitioner was appointed was a clear and vacant post on the date when the petitioner was appointed and the same was reserved for SC category. The petitioner belongs to the SC category and was appointed after following the due procedure prescribed by the Rules. Merely because Mr. Vinayak Prabhu had approached the competent forum challenging the termination of his services, cannot be a basis for contending that the appointment of the petitioner, till such time Mr. Vinayak Prabhu is accommodated in any other post, has to be regarded as temporary appointment.

10. Even the respondents have taken a categoric stand that it is after Mr. Vinayak Prabhu was accommodated on another post pursuant to the consent terms filed before this Court, that the petitioner was appointed on permanent basis and the appointment of the petitioner thus came to be approved with effect from 20/05/2000. In our opinion, there is no reason to deprive the petitioner of the benefits of service from his initial date of appointment.

11. It is under the circumstances mentioned above, that the petitioner was appointed on a temporary basis, though his appointment was on a clear vacancy meant for SC category candidates. But for the factum of the challenge made by Mr. Vinayak Prabhu to the termination of his services, the petitioner would have been given the benefits from the initial date of appointment. In this view of the matter, the basis on which the petitioner is being deprived of the benefits of the TBPS is completely erroneous.

12. It is pertinent to note that the petitioner has even been granted all the increments from the initial date of appointment as on 02/01/1995. Even in this view of the matter, the contention of the respondents that the petitioner’s services have to be regarded as contractual is misconceived and can only be stated to be rejected.

13. The Petition therefore succeeds. The impugned order is quashed and set aside. The petition is allowed in terms of prayer clauses (a) & (b) which read thus:

“(a) The Hon’ble Court be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other writ or order quashing and setting aside the impugned orders dated 22nd May 2018 annexed hereinabove at Exhibit P.

(b) The Hon’ble Court be pleased to issue a writ of mandamus or a writ in a nature of mandamus or any other appropriate writ or order or direction, directing the Respondents to grant senior scale and other benefits of service to Petitioner from the initial date of his appointment i.e. 2nd January 1995.”