JELES EDUCATION SOCIETY & ORS.versusRT. BHITALE

                       [2015) 11S.C.R.878


A                JELES EDUCATION SOCIETY & ORS.

                                    v.

                              RT. BHITALE

B                     Civil Appeal No. 4606 of 2006

                         SEPTEMBER 30, 2015

          [JAGDISH SINGH KHEHAR AND R. BANUMATHI, JJ.]

c         Maharashtra· Employees of Private Schools
    (Conditions of Service) Regulation Act, 1977-s.9- Post of
    Trained Graduate Teacher - Respondent was appointed
    purely on temporary basis - He was terminated on expiry of
    period prescribed in the appointment letter - Respondent
D   challenged termination on the ground that his appointment
    was liable to be considered as permanent since the same
    was against the permanent vacancy created by the
    resignation of previous employee and also that he belonged
    to the reserved category for which the post had been
E   advertised and as such there was no justification whatsoever
    for not treating his appointment as permanent - School
    Tribunal accepted respondent's case -Appellant-society filed
    writ petition before the High Court~ By interim order, High
    Court required the appellant-society to engage respondent
F   on a year to year basis -After about 2 years of reinstatement
    in terms of interim order, respondent sought leave to contest
    elections which was declined - However, respondent
    contested the election and did not tender his resignation in
    terms of r.42(3) of 1981 Rules as was advised by appellant-
G   society-Appellant-society again terminated the services of
    the respondent- Termination was upheld by School Tribunal
    - High Court set aside termination - On appeal, held: It is
    apparent that the respondent did not fulfill the desired
H   qualification for occupying the permanent vacancy as he did
                                  878
         JELES EDUCATION SOCIETY & ORS. v. R.T.                879
                    BHITALE

not fulfill educational qualification of Sanskrit - Under      A
r.9(9)(a), candidates can only be appointed on temporary
basis, or on a year to year basis, when none of the backward
class candidates is found suitable - Accordingly,
respondent was not eligible for filling up vacancy on a
permanent basis - His appointment was in conformity with       B
r.9(9)(a) of the 1981 Rules-Thus, first order of termination
of the respondent's services was not only in consonance
with his appointment order but was also in conformity with
the statutory rules - Secondly, respondent despite being
asked, did not abide the requirements indicated in the         C
proviso to r.42(3) - Having abstained from duties without
leave, it was open to the appellant-society to dispense with
his services - Thus both the orders of termination were in
consonance with law - Service law - Maharashtra Private
                                                               0
School Employees (Condition of Service) Rules, 1981 -
r.9(9)(a). .

     Allowing the appeal, the Court
     HELD:. 1. The effort at the hands of the appellant-       E
society, in the first instance, ought to have been to fill
up the permanent vacancy created by previous
employee who resigned, on permanent basis. This
mandate clearly emerged from Section 5(1) of the 1977
Act and Rule 9(9)(a) of the 1981 Rules. However, in case       F
a candidate from the backward class was not available,
it was open to the appellant-society to fill up the post
temporarily, on a year to year basis by a candidate who
may not belong to the backward classes. It is apparent,
that the respondent did not fulfill the desired                G
qualifications for occupying the permanent vacancy
created on resignation of previous employee inasmuch
as, he did not possess the educational qualification of
Sanskrit. On account of his not possessing the
qualification of Sanskrit, the respondent was clearly not      H
880         SUPREME COURT REPORTS              [2015] 11 S.C.R.


A     eligible for filling up the vacancy <:reated by previous
      employee, on a permanent basis. [Paras 18, 19][893-h,
      894-A-B, E]

            2. The said vacancy could be filled up on a
B     temporary basis, by a candidate belonging to the
      backward class. Because, while filling up the vacancy if
      a suitable candidate was not available from the particular
      backward class (for which it was earmarked, in the
      present case Scheduled Caste), it was open to the
C     appellant-society to fill up the vacancy, out of the .
      candidates belonging to other ·backward classes. And
      if a suitable candidate belonging to the other backward
      classes was also not available, then the vacancy could
      be filled up temporarily, or on a year to year basis, by a
D     suitable candidate from the general/open category. But,
      how would the post be filled up if none of the candidates
      who had applied, is considered suitable, on account of
      lack of the required qualifications. In such a situation,
      it must be kept in mind, that if out of the candidates who
E     had applied for the advertised post, a backward class
      can.didate though not fulfilling the qualifications
      stipulated for the post, was found to be the most
      meritorious, he could be appointed against the
      advertised vacancy on temporary basis, under R.ule
F     9(9}(a) of the 1981 Rules. The respondent was found to
      be most meritorious candidate, out of those who had
      responded to the advertisement dated 04.12.1.987. But
      since he did not possess the qualifications stipulated
G     for the advertised vacancy, it was well within the right of
      the appellant-society, to offer him a temporary
      appointment till the end of the academic year, under Rule
      9(9}(a). Under Rule 9(9)(a}, candidates can only be
      appointed on temporary basis, or on a year to year basis,
H     when none of the backward class candidates is found
         .JELES EIJUCATION SOCIETY & ORS. v. RT.              881
                      BHITALE

suitable. Accordingly, when the respondent was                A
appointed temporarily on 07.12.1987 (upto 30.04.1988)
his appoi'ntment was in conformity and in· consonance
with Rule 9(9)(a) of the 1981 Rules. The order o'f
termination of the respondent's services on 30.04.1988,
was not only in consonance with his appointment order         B
dated 07 .12.1987, but was also in conformity with the
statutory rules. [Paras 20, 21][894-F-H, 895-A-F]
      3. Under Rule 42(3), it was open to the man·agement,
to allow an employee seeking leave to contest an election     C
to proceed on leave. However, in extra-ordinary
circumstances wher~ it was felt, that the employees
election campaign, was likely to adversely affect his
duties, he could be required to tender his resignation. In
furtherance of the request made by the respondent             0
seeking leave, the appellant-society advised him to
tender his resignation, under Rule 42(3). The said advice
was tendered specifically keeping in mind, the
importance of the duties and responsibilities of the
respondent, in the background of the upcoming annual          E
examinations. The respondent did not accede to the
suggestion .made to him by the appellant-society. All the
same, he contested the election, and abstained himself
from his duties, for the duration of the period for which
he had applied for leave, for his election campaign. In       F
view of the matter, the second order of termination was.
fully justified, specially when the respondent despite
being asked, did not abide by the requirements indicated
in the proviso to Rule 42(3) of the 1981 Rules. Having
abstained from duties without leave, it was open to the       G
appellant-society to dispense with the respondent's
services. It is clear that his services were dispensed with
(by the order dated 16.02.1995), in compliance with Rule
42(3). Both the orders of termination were in consonance
with law. [Paras 22, 23]                                      H
882         SUPREME COURT REPORTS                 [2015]-11 S.C.R.


A          CIVIL APPELLATE JURISDICTION: Civil Appeal No.
      4606 of 2006
           From the Judgment and Order dated 28.10.2005 of the
      High Court of Judicature at Bombay in
B          Writ Petitions No. 232 of 1993 and No. 10576 of 2004
           Vinay Navare, Satyajeet Kr., Naresh Kumar for the
      Appellant.
          Braj Kishore Mishra, Vijay Kumar, Aparna Jha for the
C     Respondent.
           The Judgment of the Court was delivered by
         J.S.KHEHAR, J. 1. Appellant No.1 -Jeles Education
  Society (hereinafter referred to as 'the appellant-society') runs
D and operates the Mahatma Gandhi Vidyamandir School. The
  school is upto Class-X. One Raut was engaged by the school,
  as a trained Graduate Teacher, to teach the subjects of English
  and Sanskrit. For reasons which are not relevant forthe present
  controversy, Raul tendered his resignation, in the middle of
E the academic session 1989-90. The same was accepted on
  26.07.1989.

            2. The appellant-society issued an advertisement on
      04.12.1987, seeking to fill up the vacancy created as a result
F     of the resignation of Raul. An English translation of the
      aforesaid advertisement, is being reproduced hereunder:

                                  "WANTED

           Wanted trained Graduate Teacher to teach English &
G          Sanskrit. Priority for Backward Class. Contact
           immediately with certificates. Mahatma Gandhi
           Vidyamandir, Sandra (E), Mumbai-51."

        3. It is apparent that the appellant-society was looking
H out for a Trained Graduate Teacher to teach English and
         JELES EDUCATION SOCIETY &ORS. v. RT                       883
              BHITALE [J.S.KHEHAR, J.]

Sanskrit. It also emerges from the advertisement, that the A
choice for appointment was to be made from out.of backward
class candidates, if possible. The respondent-R. T.Bhitale, who
belonged to the category of 'Other Backward Class' which is
also amongst the backward classes, recognized for the present
process of appointment, applied for the post of Trained B
Graduate Teacher, in fvrtherance of the advertisement
extracted.above. He was selected, and was issued the
following appointment order on 07.12.1987 :

     "With reference to your application dated 4.4.1987, I have    C
     the pleasure to inform you that you are hereby appointed
     as an Asst!. Teacher on Rs.365/- per month in the scale
     of Rs.365-15-500-20-660-EB-20-760 with effect from
     7.12.1987 or the date you report for duty. You will be
     entitled to allowance such as compensatory local              D
     allowances, House Rent Allowance and dearness
     allowance as specifically sanctioned by Government from
     time to time.

     2. Your appointment is purely temporary for a period of       E
     (not legible) months from 7.12.1987 to 30.4.1988 (not
     legible). After expiry of the above period your services
     shall stand terminated without any notice or (not legible).

     3. The terms of your employment and conditions of             F
     service shall be as laid down in the Maharashtra
     Employees of Private Schools (Conditions of Service)
     Regulation Act, 1977 and the rules made thereunder.

     4.You shall have to undergo a medical examination by
     Dr.(not legible) within three months from the date.of joining G
     the post. Your appointment shall be conditional pending
     the receipt of physical fitness certificate from the doctor
     whose name is mentioned above."

                                            (emphasis is ours)     H
8'84         SUPREME COURT REPORTS                [2015) 11 S.C.R.


 A          4. It is therefore apparent, that the respondent's
       appointment, was for the remaining period of the academic
       session 1987-88, and would culminate on 30.04.1988. The
       School Management Committee took a decision on
       29.03.1988, not to continue with the respondent any further,
 B     and accordingly, in consonance with the letter of appointment
       dated 07.12.1987, his appointment came to an end on
       30.04.1988. He was intimated about his termination on the
       same day i.e., on 30.03.1988.
 C       5. Dissatisfied with the order, by which his services were
   dispensed with, the respondent preferred an appeal assailing
   the order dated 30.04.1988 under Section 9 of the
   Maharashtra Employees of Private Schools (Conditions of
   Service) Regulation Act, 1977 (hereinafter referred to as 'the
 0 1977 Act'). The position adopted by the tespondentwas, that
   his appointment vide order dated 07.12.1987 was liable to be
   considered as permanent, s.ince the same was against a
   permanent vacancy, created by the resignation of Raut. It was
   also his contention, that he belonged to the reserved category,
 E for which the post had been advertised, and as such, there
   was no justification whatsoever for not treating his appointment
   as permanent.
        6. The above position adopted by the respondent, was
  sought to be contested by the appellant-society. The case set
F up by the appellant-society was, thatthe respondent did not
  satisfy the conditions of eligibility, for occupying the vacancy
  created by Raut. In this behalf even while acknowledging the
  position adopted by the respondent, namely, that the post in
  question was to be filled up by way of reservation out of
G backward classes candidates, it was pointed out, that those
  who had responded to the advertisement dated 04.12.1987,
  should have had qualifications which would enable them to
  teach the subjects of English and Sanskrit, namely, the subjects
H which Raut was handling, while in the employment bf the
           JELES EDUCATION SOCIETY&'ORS. v. R.T.                        8'85
                BHITALE [J.S.KHEHAR, J.]

 Mahatma Gandhi Vidyamandir School. It was also the case of 'A
 the appellant-society, that whilst the respondent possessed
 the qualifications to teach English, he did not possess the
 qualifications to teach Sanskrit, and without possessing the
 said qualifications, he would be useless for imparting training
 in the subject of Sanskrit. To substantiate, that the respondent B
 did not possess any qualification in Sanskrit, the appellant-
 society has placed on the record of this case, a xerox copy of
 the B.A.(Special) degree qualification, as also, the B.Ed
 degree qualification awarded to the respondent, wherefrom it
 is apparent, that he did not undertake any course in the subject       c.
 of Sanskrit., The fact that the respondent did not possess any
 qualification in the subject of Sanskrit, is not a matter of dispute, .
.between the rival parties.
       7. The School Tribunal acce.pted the appeal preferred            D
by the respondent, vide an order dated 26.06.1992. The School
Tribunal arrived atthe conclusion, thatthe appointment of the
respondent was liable to be treated as permanent, and as such,
since the services of the respondent had been terminated in
violation of the statutory rules, his termination from employment,      E
was held as.not sustainable in law.
       8. The order dated 26.06.1992 passed by the School
Tribunal was assailed by the appellant-society before the High
Court of Judicature at Bombay (hereinafter referred to as 'the
High Court') by filing Writ Petition No.2·32of1993. During the          F
hearing of the aforesaid writ petition, the High Court passed
an interim order dated 05.03 ..1993. The interim order passed
by the High Court is available o.n the record of this case. Its
perusal reveals, that as an interim measure, the High Court
required the appellant-society to engage the respondent herein,         G
on a year to year basis, without prejudice to the rights and
contentions of the rival parties. It is also not a matter of dispute,
that in furtherance of the interim order dated 05.03.1993, the
respondent was continued in the employment of the appellant-            H
886         SUPREME COURT REPORTS                 [2015] 11 S.C.R.


 A    society, on a year to year basis.
          9. After having been reinstated in service in terms of the
    order passed by the School Tribunal dated 26.06.1992, and
    the interim order passed by the High Court on 05.03.1993,
  8 the respondent desired to contest elections in January, 1995.
    He sought      leave forthe above purpose. The request of the
    respondent, for leave made through his representation dated
    19.01.1995, was declined by the appellant-society on
    31.1.1995. The appellant-society advised the respondent to
. c tender his resignation, if he desired to contest the above
    election, under Rule 42(3) of the Maharashtra Private School
    Employees (Condition of Service) Rules, 1981 ·(hereinafter
    referred to as 'the '1981 Rules'). Despite the fact, that the
    respondent was denied l~ave for the period in terms of his
  D representation dated 19.01.1995, the respondent did not
    attend to his duties, and any how contested the above election.
    He also did not tender his resignation in terms of Rule 42(3) of
    the 1981 Rules. It is therefore, that the appellant-society yet
    again terminated the services of the respondent, by an order
  E dated 16.02.1995.

         10. The above order of termination dated 16.02.1995
   was again assailed by the respondent, by preferring an appeal
   before the School Tribunal, under Section 9 of the 1977 Act.
 F On 09.03.1995, the School Tribunal passed an interim order
   in favour of the. respondent, by which the impugned order of
   termination dated 16.02.1995 was ordered to be stayed. It is
   in the above circumstances, that the respondent once again
   despite his termination for the second time, was permitted to
 G continue in service.

        11. The above appeal filed by the respondent, to assail
   the order dated 16.02.1995, was dismissed in defau:t on
   30.04.2001. A request made by the respondent for restoration
 H of the same, was declined by the School Tribunal on
         JELES EDUCATION SOCIETY & ORS. v. RT.                    887
              BHITALE [J.S.KHEHAR, J.]

10.02.2003. It is in the above circumstances, that the A
respondent preferred Writ Petition No.2975 of 2003 before
the High Court. By an order dated 01.12.2003, the High Court
allowed the above writ petition, and ordered the restoration of
the appeal preferred by the respondent, before the School
Tribunal. By its order dated 07.05.2004, the School Tribunal B
dismissed the appeal filed by the respondent, against the order
of his termination dated 16.02.1995. On this occasion, the
respondent approached the High Court by filing Writ Petition
No:10576 of 2004.
                                                                  c
       12. By the impugned order dated 28.10.2005, the High
Court collectively disposed of Writ Petition No.232 of 1993
filed by the appellant-soc.iety, and Writ Petition No. 10576 of
2004 preferred by the r~spondent. The High Court affirmed
the order passed by the School Tribunal dated 26.06.1992 D
holding, that the appellant was inducted as a permanent
employee, and his services were dispensed with in violation
of the statutory rules. Insofar as Writ Petition 10576 of 2004 is
concerned, the High Court arrived at the conclusion, that the
School Management was not justified in requiring the E
respondent to tender his resignation under Rule 42(3) of the
1981 Rules, on account of th.e fact that he was a permanent
employee, and not a temporary employee.

      13. The instant controversy, necessarily has to be          F
examined in the background of the statutory rules relied on.
First and foremost, it is essential for us to take into
consideration Section 5 of the 1977 Act. The same is being
extracted hereunder:
                                                                  G
     "5. Certain obligations of Management of private
     schools:-(1) The Management shall. ·as soon as possible,
     fill in, in the manner prescribed, every permanent vacancy
     in a private school by the appointment of a person duly
     qualified to fill such vacancy:                              H
888   SUPREME COURT REPORTS                   [2015] 11 S.C.R.


A         Provided that, unless such vacancy is to be filled in by
      promotion, the Management shall, before proceeding to
      fill such vacancy, ascertain from the Educational Inspector,
      Greater Bombay, the Education Officer, Zilla Parishad
      or, as the case may be, the Director or the Officer
8     designated by the. Director in respect of schools ·
      imparting technical, vocational, art or special education,
      whether there is any suitable person available on the ltst
      of surplus persons maintained by him, for absorption in
      other schools; and in the event of such person being
c     available, the Management shall appoint that person in
      such vacancy.

      (2) Every person appointed to fill a permanent vacancy
      except Shikshan Sevak shall be on probation for a period
D     of two years. Subject to the provisions of sub sections
      (3) and (4), he shall, on completion of this probation
      period of two years, be deemed to have been confirmed.

      Provided that, every person appointed as shikshan sevak
E     shall be on probation for a period of three years.

      (2A) Subject to the provisions of sub-sections (3) and
      (4), Shikshan Sevak shall, on completion of the probatio.n
      period of three years, be deemed to have been
      appointed and confirmed as a teacher.
F
      (3) If in the opinion of the Management, the work or
      behaviour of any probationer, during the period of his
      probation, is not satisfactory, the Management may
      terminate his services at any time during the said period
G     after giving him one month's notice or salary or
      honorarium of one month in lieu of notice.

      (4) If the services of any probationer are terminated under
      sub-section (3) and he is reappointed by th.e
H     Management in the same school or any othe~ school
          JELES EDUCATION SOCIETY &ORS. v. RT.                        889
               BHITALE [J.S.KHEHAR, J.]

     belonging to it within a period of one year from the date A
     on which his services were terminated, then the period
     of probation undergone by him previously shall be taken
     into consideration in calculating ttie required period of
     probation for the p~rposes of sub-section (2).
                                                                      B
       (4A) Nothing in sub"section (2), (3) or (4) shall apply to a
      person appointed to fill a permanent vacancy by
      promotion or by absorption as provided under the proviso
      to sub-section ( 1).

      (5) The Management may fill in every temporary vacancy
                                                                      c
      by appointing a person duly qualified to fill such vacancy.
      The order of appointment shall be drawn up in the form.
      prescribed in that behalf, and shall state the period of
      appointm.ent of such persol')."                                 o
                                            (emphasis is ours)

       14. It was the contention of the learned counsel for the
respondent, that Section 5 of the 1977 Act envisages two water
tight compartments. The first postulated through Section 5(1)
which caters to appointment against permanent vacancies, E
and Section 5(5) caters to the second contingency, which
relates to employment against temporary vacancies. l,n view
of the above, the submissions advanced at the hands of the
learned counsel for the respondent seems to be justified and F
we endorse the same, namely, that Section 5 deals with filling
up of permanent as well as temporary vacancies. It is however
important to highlig,ht, that irrespective of the nature of
appointment (against a permanent or temporary vacancy), both
the sub-sections of Section 5, man~ate that the appointee will G
have to be" ... a person duly qualified ... "

      15. The othE?r statutory provision, that needs to be taken
into consideration is Rule 9, of the 1981 Rules. A relevant
extract of the sam~ is being extracted hereunder:
                                                                      H
890    SUPREME COURT REPORTS                  [2015] 11 S.C.R.


A     "9. Appointment of staff.

      (1) The teaching staff of the school shall be adequate
      having regard to the number of classes in the school and
      the curriculum including alternative courses provided and
B     the optional subjects taught therein.

      (2) Appointments of teaching staff (other than the Head
      and Assistant Head) and those of non-teaching staff in a
      school shall be made by the School Committee:

C      Provided that, appointments in leave vacancies of a
      short duration not exceeding three months, may be made
      by the Head, if so authorized by the School Committee.

      (3) Unless otherwise provided in these rules for every
o     appointment to be made in a school, for a teaching or a
      non-teaching post, the candidates eligible for
      appointment and desirous of applying for such post shall
      made an application in writing giving full details
      regarding name, address. date of birth, educational and
E.    professional qualifications. experience, etc. attaching
      true copies of the original certificates. It shall not be
      necessary for candidates other than those belonging to
      the various sections of backward communities for whom
      posts are reserved under sub-rule (7) to state their castes
F     in their applications.

      (4) xxx                        xxx                    xxx
      (5) xxx                        xxx                    xxx
G     (6) xxx                        xxx                   xxx
      +[(7) The Management shall reserve 52 per cent of the
      total number of posts of the teaching and non-teaching
      staff for the persons belonging to the Scheduled Castes,
H     Scheduled Tribes, Denotified Tribes (Vimukta Jatis),
     JELES EDUCATION SOCIETY & ORS. v. R.T.              891
          BHITALE [J.S.KHEHAR, J.]

Nomadic Tribes, Special Backward category and other A
Backward Classes as follows, namely:-

   (a)   Scheduled Castes              13 per cent;

   (b)   Scheduled Tribes              7 percent;
                                                         B
   (c)   De-notified Tribes (A)        3 per cent;

   (d)   Nomadic Tribes (B)            2.5 per.cent;

   (e)   Nomadic Tribes (C)            3 percent;
                                                         c
   (f)   Nomadic Tribes (D)            2 percent;

   (g)   Special Backward Category 2 percent;

   (h)   Other Backward Classes        19 per cent;
                                                         D
                              Total - 52 per cent.

+sub-rule (7) substituted by Not. No. PRASHANYA ..
1005/ (94/05)/SE-2 dated 08.07.2008.

(8) For the purpose of filling up the vacancies reserved E
under sub-rule (7) the Management shall advertise the
vacancies in at least one newspaper having wide
circulation in the region and also notify the vacancies to
the Employment Exchange of the District and to the
District Social Welfare Officer +[and to the associations F
or organizations of persons belonging to Backward
Classes, by whatever names such associations or
organizations are called, and which are recognized by
Government for the purposes of this sub-rule]
requisitioning the names of qualified personnel, if any, G
registered with them. If it-is not possible to fill in the
reserved post from amongst candidates, if any, who have
applied in response to the advertisement or whose
names are recommended by the Employment Exchange
                                                         H
892       SUPREME COURT REPORTS                     [2015] 11 S.C.R.


A        or the District Social Welfare Officer +[or such
         associations or organizations as aforesaid] or if no such
         names are recommended by the Employment Exchange
         or the District Social Welfare Officer +[or such
         associations or organization as aforesaid] within a period
 B       of one month the Management may proceed to fill up the
         reserved post in accordance with the provisions of sub-
         rule (9).

         +The words are inserted by Not No. PST/1083/194/SE-
c        3- Cell, dated 20.12.1984.

         (9) (a) In case it is not possible to fill in the teaching post
         for which a vacancy is reserved for a person belongi129.
         to a particular category of Backward Classes, the post
D        may be filled in by selecting a candidate from the other
         remaining categories in the order specified in sub-rule
         (7) and if no person from any of the categories is
         available, the post may be filled in temporarily or an year-
         to-year basis by a candidate not belonging to the
E        Backward Classes.
                                                     (emphasis is ours)

        16. It was the contention of the learned counsel for the
  respondent, that under Rule 9, which caters to appointment of
F teaching staff, the respondent was liable to be appointed on a
  permanent post, because his appointment was against a
  permanent vacancy, created by Raut. It was also his contention,
  that he belonged to the category of backward classes
  (contemplated under Rule 9(7) of the 1981 Rules). It was
G submitted, that even though the vacancy in question was
  earmarked f.or scheduled castes, the respondent was entitled
  to be permanently appointed against the same, because of
  the absence of a suitable and eligible Scheduled Caste
  candidate or even from the other categories of backward
H classes, in terms of Rule 9(8) of the 1981 Rules (extracted
          JELES EDUCATION SOCIETY &ORS. v. R.T.                   893
               BHITALE [J.S.KHEHAR, J.].

above). Since the respondent was selected against a A
permanent vacancy, which had been duly advertised, as also,
against a post reserved for backward classes, his appointment
wi.s liable to be considered to be permanent, for all intents
and purposes, and specially in terms of the mandate contained
in Rule 9(9)(a).                                              B

      17. To counter the submissions advanced at the hands
of the learned counsel for the respondent, learned counsel for
the appellants, has invited our attention to Section 5(1),
extracted above, in order to contend. that it was imperative for C
the management to fill up all permanent vacancies, and that, a
permanent vacancy should not be left unfilled on account of
the adverse affect which was liable to be caused to the students,
enrolled in the school run by the appellant-society. Referring to
Section 5(1 ), it was further ;;,_!bmitted, that the selected D
candidate had to be " ... a person duly qualified to fill such
vacancy... ". In addition to the above, it was the contention of
the learned counsel for the appellants; that in the process of
selection, the appellant-society required a Trained Graduate
Teacher, possessing qualifications to teach the subjects of E
English and Sanskrit. However, in response to the
advertisement dated 04.12.1987, the appellant-society did not
find ar.1y suitable candidate possessing the above.
qualifications. It is in the above view of the matter, that the
appellant-society selected the respondent, and issued an offer· F
of appointment on temporary basis, till the end of the academic
session i.e., 30.04. 1988. The question that arises for our
consideration is, whether the respondent was liable to be
treated as a permanent employee, or whether it was open to G
the appellant-society, to appoint him on temporary basis upto
30.04.1988?

     18. Having given our thoughtful consideration to the issue
in hand, we are satisfied, that the effort at the hands of the
appellant-society, in the first instance, ought to have been to   H
894       SUPREME COURT REPORTS                   [2015] 11 S.C.R.


A fill up the permanent vacancy created by Raut, on permanent
  basis. This mandate clearly emerges from Section 5(1) of the
   1977 Act and Rule 9(9)(a) of the 1981 Rules. However, in case
  a candidate from the backward class was not available, it was
  open to the appellant-society to fill up the post temporarily, on
B a year to year ,basis by a candidate who may not belong to the
  backward classes. It was however the emphatic submission
  of the learned counsel for the respondent, that in case of
  absence of a candidate belonging to the backward class, the
  only option available to the appellant-society was to fill up the
C vacancy by appointing a candidate " ... not belonging to the
  backward class". It was submitted, that the appellant-society
  had no option, but to follow the said procedure, in case it
  desired to fill up the vacancy created by Rau!, on temporary
  basis.
0
          19. In our considered view, it is apparent, that the
  respondent did not fulfill the desired qualifications for occupying
  the permanent vacancy created by Rau!, inasmuch as, he did
  not possess the educational qualification of Sanskrit. On
E account of his not possessing the qualification of Sanskrit, the
  respondent was clearly not eligible for filling up the vacancy
  created by Raut, on a permanent basis.

          20. The next question that arises for our consid~ration
F is, whether the aforesaid vacancy could be filled up on a
  temporary basis, by a candidate belonging to the backward
  class? In our view, the answer to the above has to be in the
  affirmative. We say so because, while filling up the vacancy if
  a suitable candidate was not available from the particular
G backward class (for which it was earmarked, in the present
  case- Scheduled Caste), it was open to the appellant-society
  to fill up the vacancy, out of the candidates belonging to other
  backward classes. And if a suitable candidate belonging to
  the other backward classes was also not available, then as
H submitted by the learned counsel for the respondent, the
            JELES EDUCATION SOCIETY & ORS. v. R.T.                    895
                 BHITALE [J.S.KHEHAR, J.]

  vacancy could be filled up.temporarily, or on a year to year        A
  basis, by a suitable candidate from the general/open category.
  But, how would the post be filled up if none of the candidates
  who had applied, is considered suitable, on account of lack of
  the required qualifications. In such a situation, it must be kept
  in mind, that if out of the candidates who had applied for the      B
  advertised post, a backward class candidate though not fulfilling
  the qualifications stipulated for the post, was found to be the
  most meritorious, he could be appointed against the
  advertised vacancy on temporary basis, under Rule 9(9)(a) of
  the 1981 Rules. The respondent was found to be most                 C
  meritorious candidate, out of those who had responded to the
  advertisement dated 04.12.1987. But since he did not possess
  the qualifications stipulated for the advertised vacancy, it was
  well within the right of the appellant-society, to offer him a
                                                                      0
  temporary appointment till the end of the academic year, under
  Rule 9(9)(a). Under Rule 9(9)(a}, candidates can only be
  appointed on temporary basis, or on a year to year basis,
  when none of the backward class candidates is found suitable.
  Accordingly, when the respondent was appointed temporarily          E
  on 07.12.1987 (upto 30.04.1988) his appointment was in
. conformity and in consonance with Rule 9(9)(a) of the 1981
  Rules.

       21. In view of the above, we are satisfied thatthe order
 of termination of the respondent'sseNices on 30.04.1988, was         F
 not only in consonance with his appointment order dated
 07 .12.1987, but was also in conformity with the statutory rules.

     22. Having recorded our above conclusion, it is not
necessary for us to deal with the second issue canvassed G
before us. Be that as it may, we feel compelled to deal with the
said issue also, on account of the fact, that detailed
submissions were advanced on the said issue also. To
determine the validity of the second order of termination dated
16.02.1995, Rule42 of the 1981 Rules is relevant. The same H
896         SUPREME COURT REPORTS                   [2015] 11 S.C.R.


A     is extracted hereunder:

           "42. Contesting Elections: (1) Subject to the provisions
           of sub-rules (3) to (6)(both inclusive), an employee may,
           with previous intimation to the Management in writing,
B          contest elections to the University Senate in accordance
           with the provisions laid down in the respective non-
           Agricultural University Acts, or as the case may be, to
           the Maharashtra Legislative Council as provided in sub-
           clauses (b) and (c) of clause (3) of Article 171 of the
c          Constitution of India.

           (2) Subject to the provisions of sub-rules (3) to (6) (both
           inclusive), an employee may, with the previous permission
           of the Management in writing, contest election to public
D          offices [other than those mentioned in sub-rule (1 )] at the
           Local,.District, State or National level.

           (3) Immediately after filing the nomination form for
           contesting such elections and the same being declared
           as valid, the employee shall proceed on leave due and
E          admissible to him; and if no leave is to his credit, he shall
           proceed on extraordinary leave, and shall continue to be
           on leave till the declaration of the election results.

           Provided that the Management may require a temporary
F          employee contesting such election to resign his post even
           during the election campaign, if in the opinion of the
           Management, the election campaign is likely to adversely
           affect the duties of the employee.

G          (4) The employee contesting such an election r;hall not
           involve the Management, employees or students of the
           Institution in which he is employed, in the election
           campaign.

           (5)(a) In the event of his being elected the permanent
H
    JELES EDUCATION SOCIETY & ORS. v. R.T.                     897
         BHITALE [J.S.KHEHAR, J.]

employee shall apply for further extension of leave due A
and admissible to him and if no leave is at his credit, the
extra-ordinary leave for the period for which he is likely
to continue to hold the office; and the same shall be
granted by the Management in relaxation of the limit
prescribed in sub-rule (13) of rule 16.                     B

(b) In case, however, if the sessions of meetings of the
public office are held at intervals he may be allowed to
avail himself of leave due and admissible to him or, as
the case may be, the extra-ordinary leave, for the actual C
periods of the sessions or meetings including the periods
of journey and may be allowed to attend the school during
the remaining periods.

(c) The period of extra-ordinary leave availed of for the
                                                               0
purpose, shall be counted for purposes of annual
increments.

(6)(a) In the event of a permanent employe further
becoming an office-bearer such as Chairman, President,
Vice-President, Secretary, Joint Secretary, etc., which        E
demands full-time attendance or long-time absence from
normal duties, he shall apply for keeping his lien on the
post which he held, which shall be granted by the
Management.
                                                               F
(b) In the case of a non-permanent employee who is on
leave till the declaration of election results, in the event
of his being elected he shall resign the post he held
immediately on his election to the public office.
                                                               G
(7) Provisions of sub-rules (3), (4) and (5) shall mutatis
mutandis apply to,-

(i) the permanent employees elected to public offices
being further elected on the University Senate, or as the      H
898       SUPREME COURT REPORTS                [2015) 11 S.C.R.


A        case may be, the State Board of Secondary and Higher
         Secondary Education, by virtue of their office;

         (ii) the permanent employee nominated by the State
         Government on the State Board or Division· Board of
.B       Secondary and Higher Secondary Education."

          Under Rule 42(3), it was open to the management, to
  allow an employee seeking leave to contest an election to
  proceed on leave. However, in extra-ordinary circumstances
C where it was felt, that the employees election campaign, was
  likely to adversely affect his duties, he could be required to
  tender his resignation. In furtherance of the request made by
  the respondent seeking leave, the appellant-society through .
  its communication dated 31.01.1995, advised him to tender
0 his resignation, under Rule 42(3). The said advice was
  tendered specifically keeping in mind, the importance of the
  duties and responsibilities of the respondent, in the background
  of the upcoming annual examinations. The respondent did not
  accede to the suggestion made to him by the appellant-society,
E through its communication dated 31.01.1995. All the same,
  he contested the election, and abstained himself from his
  duties, for the duration of the period for which he had applied
  for leave, for his election campaign. In the above view of the
  matter, we are satisfied, that the order of termination dated
F 16.02.1995 was fully justified, specially when the respondent
  despite being asked, ·did not abide by the requirements
  indicated in the proviso to Rule42(3) of the 19.81 Rules. Having
  abstained from duties without leave, it was open to the
  appellant-society to dispense with the respondent's services.
G It is clear that his services were dispensed with (by the order
  dated 16.02.1995), in compliance with Rule 42(3). Acceptance
  of the prayer of the respondent, would have the result of
  interpreting the above Rule, as if it was of no consequence.

H
            JELES EDUCATION SOCIETY &ORS. v. R.T.                 899
                 BHITALE [J.S.KHEHAR, J.]

      23. For the reasons recorded hereinabove, we are A
satisfied that both the orders of termination dated 30.03.1988
and 16.02.1995 were in consonance with law. Accordingly,
the impugned order passed by the Bombay High Court on
28.10.2005 holding otherwise, is hereby set aside.
                                                               B
      24. The instant appeal is allowed, in the above terms.

      25. During the course of recording this order,· it was
pointed out by the learned counsel for the respondent, that the
High Court by its order dated 05.03.1993 (in Writ Petition C
No.232of1993) had allowed the respondent to continue in
service from year to year. Insofar as the arrears of salary
payable to the respondent is concerned, as a temporary
arrangement, the High Court had directed the appellant-society
to pay the respondent a sum of Rs.15,000/-. It was submitted, D
that the aforesaid sum of Rs.15,000/-, was paid by the
appellant-society to the respondent, as far back as in 1993. ·
Learned counsel for the respondent prays, that the above
amount be riot recovered from him, as the respondent was not
in a position to refund the same. Having given a thoughtful E
consideration to the instant issue, we are of the view, thatthe
above amount paid to the respondent, as far back as in 1993,
should not be recovered from the respondent. We order
accordingly.
                                                                F
Devika Gujral                                   Appeal allowed.