High Court
Legal Reasoning
146688.2024WP.odtthe appeal, respondent no.1 has stated that the petitioners hadprovided a photostat copy of the appointment order byretaining the original. It will be pertinent to state that in theinquiry conducted by the Social Welfare Department,respondent no.1 could not even produce the photostat copy ofthe appointment order. Likewise, inspection of the Muster Rollin the said inquiry indicated that the name of respondent no.1did not appear in the Muster Roll. In this regard, it needs to bestated that it is the case of the petitioners that respondentno.1 was not regularly appointed on the post of JuniorLecturer as alleged by him but was only permitted to conductsome classes on his request. 16.It is well settled by catena of judgments of thisCourt that burden of proof that appointment order is issuedafter following prescribed procedure is on the employee. Inthe case at hand, respondent no.1 has failed to prove theappointment and it has also come on record that he was notholding the requisite educational qualification on the date ofhis alleged appointment.
Arguments
16688.2024WP.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 6688 OF 20241.Ahilyabai Holkar Shikshan Prasarak Mandal, Karepur, Through its Secretary Mukesh S/o Balasaheb RajemeneAge : 35 years, Occ : Service, R/o Triveni, plot no.8, Vishal Nagar, Latur. 2.Nilesh s/o Balasaheb Rajemene Age : 41 years, occ : Service as Principal, Late Janardhanrao Rajemene Uccha Madhyamik, Ashram School, Janwal, Tq. Chakur, Dist. Latur. 3.Yogesh s/o Deeliprao Kadam Age : 37 years, Occ : Service as Jr. Lecturer Late Janardhan Rajemene Uccha Madhyamik Ashram Shala, Janwal, Tq. Chakur, Dist. Latur. ..PETITIONERSVERSUS1.Balasaheb s/o Devidasrao Pawar, Age : 41 years, Occ : Junior Lecturer, R/o Zari (Kh), Tq. Chakur, Dist. Latur 2.The Assistant Commissioner, Social Welfare Office, Latur, Dist. Latur. 3.The Regional Deputy Commissioner, Social Welfare Office, Latur, Dist. Latur. ..RESPONDENTS…Mr.V.D. Sapkal, senior advocate a/w Mr. A.D. Khedkar i/b Mr.M.S. Thur, Advocate for petitioners. Mr. V.D. Salunke, Advocate for respondent no.1 Mr. N.D. Raje, AGP respondent/State. 26688.2024WP.odt…CORAM:ROHIT W. JOSHI, J.RESERVED ON :21st JULY, 2025PRONOUNCED ON:28th JULY, 2025JUDGMENT :The present petition is filed challenging thejudgment and order dated 18.03.2024 passed by the learnedPresiding Officer, School Tribunal, Latur in AppealNo.23/2019. Respondent No.1 had filed the said appealstating that his services as Junior Lecturer in late JanardhanRajemene Higher Secondary Ashram School, Janwal came tobe terminated by way of otherwise termination on15.06.2015. The learned Tribunal has quashed and set asidethe otherwise termination dated 15.06.2015 and has issueddirections to petitioner nos.1 and 2 to reinstate respondentno.1 in service with continuity and full back wages from thedate of termination till the date of reinstatement. 2.Petitioner No.1 is a trust registered under theMaharashtra Public Trust Act (hereinafter referred to as "MPTAct"). It runs Ashram School named late JanardhanraoRajemene Higher Secondary Ashram School, Janwal. 36688.2024WP.odtRespondent No.1 claims that he came into contact withPresident and Secretary of petitioner no.1, who informed thatthe trust has received permission to start a Junior Collegefrom the year 2008 and that if he was interested in working inthe said college then for initial period of six months he willhave to render honorary service in the college. It is his casethat he was informed that an advertisement for recruitmentwill be issued for the academic year 2009-2010 in which hecan participate for regular appointment on the post of JuniorLecturer. Respondent No.1 contends that accordingly,advertisement was issued for the post of Junior Lecturer andhe was called for interview for the post of Junior Lecturer(Chemistry) on 07.06.2009. He states that he was renderingservices with the said Ashram School. According to him, theAshram School was admitted to 25% grant-in-aid in theacademic year 2012-2013 and 100% grants from the academicyear 2015-2016. He has alleged that in the year 2014-2015,the petitioner-management had made a demand of donationof Rs.10,00,000/- and since he expressed inability to honourthe demand due to financial constraints his services wereterminated. He contends that when he went to school to jointhe services after summer vacation on the opening day of the 46688.2024WP.odtsession on 15.06.2015, he was restrained from signing theMuster Roll. Respondent No.1 has stated that this act ofrestraining from signing the Muster Roll amounts to otherwisetermination. 3.The respondent no.1 filed appeal under Section 9of the Maharashtra Employees of Private Schools (Conditionsof Service) Regulation Act, 1977, which came to be registeredas Appeal No.23/2019, with averments as above. 4.Respondent No.1 holds the following educationalqualifications which he acquired as under :- (i)2001:B.Sc. Chemistry, Zoology and Fisheries (ii)2003:B.Ed. (iii)2004: M.Sc. - Chemistry (iv)2011:M.Sc. - Zoology 5.It will be pertinent to mention here thatrespondent no.1 has filed photocopy of appointment orderdated 08.06.2009 along with the appeal. It is his contention inthe appeal that the original appointment order was retained 56688.2024WP.odtby the petitioner-management. 6.On being served with the notice in the appeal,petitioner nos.1 and 2 entered appearance and filed replyopposing the appeal. Petitioner Nos.1 and 2 denied theappointment order placed on record by respondent no.1. Theydenied that respondent no.1 joined service on the post ofJunior Lecturer w.e.f. 15.06.2009. However, it is theircontention that at the request of respondent no.1 he wasallowed to take some classes in the school in order to enablehim to acquire teaching experience. They, however, deniedthat respondent no.1 was a regular employee. The petitionerscame up with a specific contention that respondent no.1 wasnot qualified for appointment to the post of Junior Lecturer. Inthis regard, the contention of the petitioners is that initiallythey had issued advertisement dated 01.10.2008 callingapplications for appointment to various posts of JuniorLecturers including the post of Junior Lecturer (Biology-Chemistry). The prescribed qualification in the advertisementwas M.Sc. B.Ed.-Biology. It is stated that since duly qualifiedcandidate was not received for appointment secondadvertisement was issued in the month of June, 2009. The 66688.2024WP.odteducational qualification again was specified as M.Sc. B.Ed.-Biology. The petitioners further contended that thirdadvertisement for the same post with the same qualificationwas issued on 27.05.2012. It is their contention that pursuantto the said advertisement, petitioner no.3 was selected andappointed on the said post of Lecturer (Biology-Chemistry). 7.The petitioners specifically contended thatrespondent no.1 was also not eligible for appointment to thesaid post on regular basis since he did not hold the essentialqualification of M.Sc.(Biology) at the relevant time. 8.As regards the appointment order, the petitionershad denied the issuance of appointment order in favour ofrespondent no.1. The petitioners stated that respondent no.1had lodged a complaint against them with the authorities inthe Social Welfare Department. It is contended that the saidauthorities had initiated an inquiry in the matter and foundthat respondent no.1 was not appointed in the Ashram Schoolas alleged by him. The petitioners have placed reliance onreport dated 28.07.2015 issued by the Regional Deputy 76688.2024WP.odtCommissioner to contend that respondent no.1 was falselycontending that he was appointed on the post of JuniorLecturer in the said school. With respect to the appointmentorder, the petitioners relied upon supplementary report issuedby Officers of the Social Welfare Department, in which it isstated that respondent no.1 had made a statement that theappointment order issued by petitioner nos.1 and 2 in hisfavour was taken back by them, and therefore, respondentno.1 did not possess the appointment order. It is stated thatrespondent no.1 had expressed that he could not evenproduce the copy of the appointment order. 9.As stated above, the learned Tribunal has allowedthe appeal vide judgment and order dated 18.03.2024. Thelearned Tribunal has held that respondent no.1 was appointedon the post of Junior Lecturer against a clear vacant post. It isheld that respondent no.1 was holding the requisitequalification for appointment to the said post. With respect tothe name of respondent no.1 not being reflected in the muster,learned Tribunal has held that the Muster was maintained bypetitioner nos.1 and 2, and therefore, merely because thename of respondent no.1 did not appear in Muster Roll, that 86688.2024WP.odtby itself will not debar his claim. It is held that services ofrespondent no.1 were terminated by way of 'otherwisetermination'. In view of such finding, the learned Tribunal hasordered that respondent no.1 should be reinstated in servicewith continuity and full back wages. 10.Mr. V.D. Sapkal, the learned senior advocate forthe petitioners contends that respondent no.1 was neverappointed in the Ashram School on regular basis. Hiscontention is that at the request of respondent no.1, he wasallowed to conduct a few classes in the Ashram School forwhich the appointment order was also not issued. In supportof his contention, he draws attention to the inquiry reportfurnished by officials of Social Welfare Department on thecomplaint made by respondent no.1. His contention is that theappointment order dated 08.06.2009 relied upon byrespondent no.1 was never issued and that it is forgeddocument prepared by respondent no.1. Apart from this, hecontends that the essential qualifications for appointment tothe post is M.Sc. (Biology) with B.Ed. Mr. Sapkal states thatalthough, respondent no.1 claims to be appointed on08.06.2009, he has acquired the qualification of M.Sc. 96688.2024WP.odt(biology) in the year 2011. Placing reliance on the judgmentsin the matters of State of Gujarat and others Vs. ArvindkumarT. Tiwari and another, 2012 AIR (SC) 3281 and BhartiyaMahila Mandal, Chavani, Aurangabad and another Vs. ChaganPavlasa Bhalekar and others, 2012 (6) Mh.L.J. 368. Hecontends that appeal was liable to be dismissed solely onaccount that respondent no.1 was not duly qualified forappointment on the said post. The learned senior advocatecriticizes the judgment delivered by the learned Tribunal andcontends that the same is not sustainable either in the facts ofthe case or in law. 11.Per contra, Mr.V.D. Salunke, learned advocate forrespondent no.1 supports the judgment passed by the learnedTribunal contending that respondent no.1 was holding thequalification of M.Sc. B.Ed. as on the date of his appointment.He contends that this is the requisite qualification forappointment to the post of Junior Lecturer. He states that thepetitioner-management had issued appointment order infavour of respondent no.1 pursuant to which respondent no.1was regularly working on the post of Junior Lecturer. He hasreferred to certain documents showing that he was 106688.2024WP.odtdischarging duties in the school to demonstrate thatrespondent no.1 was duly appointed vide appointment orderdated 08.06.2009. 12.There are three advertisements on record, whichare issued in the years 2008, 2009 and 2012. All theseadvertisements specify the requisite qualification as M.Sc.B.Ed. (Biology). Respondent No.1, who claims to be appointedon the post on 08.06.2009 acquired the academic qualificationof M.Sc. (Zoology) in the year 2011. Thus, he did not possessthe qualification mentioned in the advertisement as on thedate of his alleged appointment. The prescribed qualificationas per the Rules for appointment to the post of Junior Lectureris degree in the relevant subjects along with B.Ed. Themanagement had issued advertisement all through outprescribing qualification of M.Sc. (Biology) and B.Ed. It is,therefore, apparent that respondent no.1 was not holding theessential qualification as per the qualification as on08.06.2009, which is the date on which he was appointed onthe post of Junior Lecturer as per case set up by him. It is wellsettled that a candidate, who does not hold requisite academicqualification for appointment to a post cannot claim to be 116688.2024WP.odtholding the post as a regularly selected candidate. Such acandidate cannot have any claim over the post. The candidate,who does not hold the requisite educational qualification isnot entitled to relief of reinstatement in service in the event ofhis termination. The learned senior advocate for thepetitioners has rightly placed reliance on the aforesaidjudgments in the matters of Arvindkumar and Bhartiya MahilaMandal. Relevant observations in the matter of Arvindkumarare as under :- "10. In State of Orissa v. Mamata Mohanty [(2011) 3 SCC436 : (2011) 2 SCC (L&S) 83] , this Court has held thatany appointment made in contravention of the statutoryrequirement i.e. eligibility, cannot be approved and oncean appointment is bad at its inception, the same cannot bepreserved, or protected, merely because a person has beenemployed for a long time.11.A person who does not possess the requisitequalification cannot even apply for recruitment for thereason that his appointment would be contrary to thestatutory rules, and would therefore, be void in law.Lacking eligibility for the post cannot be cured at any stageand appointing such a person would amount to seriousillegality and not mere irregularity.Such a person cannot approach the court for any relief forthe reason that he does not have a right which can beenforced through court. (See Prit Singh v. S.K. Mangal[1993 Supp (1) SCC 714 : 1993 SCC (L&S) 246 : (1993) 126688.2024WP.odt23 ATC 783] and Pramod Kumar v. U.P. SecondaryEducation Services Commission [(2008) 7 SCC 153 :(2008) 2 SCC (L&S) 244 : AIR 2008 SC 1817] .)"13.Similar view is taken in the matter of BhartiyaMahila Mandal (supra). The facts in the said case arestrikingly similarly to the facts of the present petition. In thesaid matter, the candidate was not holding requisitequalification in the year 1988 when he was appointed inservice. The qualification was acquired subsequently in theyear 1999. In this context, the Hon'ble High Court hasobserved as under :- "9. .... In the present case, admittedly, the respondent No. 1was not duly qualified in the year, 1988. Therefore, inabsence of necessary qualification required for the post ofAssistant Teacher, the question of appointing therespondent No. 1 on a permanent vacancy as dulyqualified person, would not arise. It is true that therespondent No. 1 has acquired necessary qualification inthe year, 1999 and to that effect, certain benefits would beaccrued to the respondent No. 1. However, the factremains that at the time of first appointment in the year,1988, the respondent No. 1 was not duly qualified. In myopinion, the school tribunal, has not considered the vitalaspect of the matter and misread the documents, whichwere placed on record by the respondent No. 1." 136688.2024WP.odt14.Mr. Salunke, learned advocate for respondentno.1 has filed an additional affidavit to contend thatrespondent no.1 has acquired qualification of M.Sc. (Zoology)with permission of petitioner nos.1 and 2. He has filedadditional affidavit dated 09.07.2025 in the present petitionalong with which letters dated 21.06.2009 and 28.06.2009purportedly issued by petitioner nos.2 and 1 respectively areannexed. However, there are no pleading with respect to thesedocuments in the appeal. That apart the said documents alsocannot take the case of respondent no.1 any further, in asmuch as, even if the contention is accepted it will have to beheld that respondent no.1 was not holding the requisitequalification as on the date of his alleged appointment. 15.It must also be stated that on a complaint madeby respondent no.1, the officials of the Social WelfareDepartment have conducted inquiry. In this inquiry,respondent no.1 stated that he did not have copy of theappointment order issued in his favour. However, photostatcopy of alleged appointment order is filed on record in theappeal. Before the Inquiry Committee, respondent no.1 statedthat the appointment order was not provided to him and in
Decision
156688.2024WP.odt17.In view of the aforesaid, I am of the consideredopinion that the learned School Tribunal has erred in allowingthe appeal filed by respondent no.1. Perusal of the judgmentby the learned Tribunal will demonstrate that the Tribunal hasnot recorded proper reasons to arrive at conclusions which arerecorded in the judgment. The learned Tribunal has failed toadvert to inconsistencies in the stand of respondent no.1, viz-a-viz, appointment order in the inquiry conducted by theSocial Welfare Department on his complaint and the pleadingsin the appeal. The learned Tribunal has also failed to considerthat the advertisement clearly mentions the prescribedqualification as M.Sc.-Biology-B.Ed. and respondent no.1 washolding the qualification of M.Sc. - Chemistry-B.Ed. on thedate of his alleged appointment. Admittedly, he has acquiredthe qualification of M.Sc. - Zoology in the year 2011 after hisalleged appointment in the year 2009. 18.In the light of aforesaid, the petitioners havemade out a case for interference. The judgment and orderpassed by the learned Tribunal is unsustainable and warrantsinterference. The petition is allowed by quashing and settingaside the judgment and order dated 18th March, 2024 passed 166688.2024WP.odtby the learned Presiding Officer, School Tribunal, Latur inAppeal No.23/2019. 19.The parties to bear their own costs. 20.Civil Applications, if any, stand disposed of.[ROHIT W. JOSHI, J.] sga/2025