S.A. Bobde, J.@mdashHeard Shri Patil, learned Counsel for the appellant, Shri Ahirkar, learned AGP for respondent No. 1 and Shri Parchure, learned Counsel for respondents No. 2 & 3. Admit. Taken up for final hearing by consent.
2. This is an appeal by a Teacher whose services were terminated by the respondents. The learned Single Judge of this Court has held that the School Tribunal has rightly dismissed the appeal filed by the appellant because the appointment order was not signed by the Head Master and though he is an OBC candidate, he was appointed on a post which was reserved for a candidate belonging to Scheduled Tribe category.
3. Shri Patil, learned Counsel for the appellant submits that the appointment could not have been held to be bad on the ground that the appointment order was not signed by the Head Master, as it was signed by the Secretary of the Management and was in substance the order by the management. He places reliance upon Section 5 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. Section 5 of the Act, insofar as it is relevant reads as follows:
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:
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 designated by the Director in respect of schools imparting technical, vocation, art or special education, whether there is any suitable person available on the list of surplus persons maintained by him, for absorption in other schools; and in the event of such person being available, the Management shall appoint that person in such vacancy.
It is obvious from the above Section 5 that the duty and power to make appointments is vested in the management. In this case, there is a resolution of the management deciding to appoint the appellant. In pursuance of such a resolution and in exercise of power vested u/s 5, the appellant ought to have been appointed in accordance with Rule 9 of Maharashtra Employees of Private Schools (Conditions of Service) Rules, which contemplates that the appointment order should be signed by the Head Master in the Form in Schedule D. However, that was not done. We do not find any illegality of such a grave nature in the appointment order, which is signed by the Secretary of the Management, so as to treat the appointment itself as invalid on this count. There is a resolution of the management for an appointment of the appellant and the appointment order was signed by the Secretary. The appointment must be treated as valid particularly since it has been acted upon. Having regard to the provisions of Section 5 read with Rule 9, it cannot be said that the appointment was void or illegal. In any event permitting the management to describe the appointment order as illegal and allowing it to terminate the services of the appellant would amount to permitting the management to take advantage of its own wrong.
4. As regards the next point Shri Patil, learned Counsel for the appellant submits that the findings of School Tribunal and the view of the learned Single Judge as to the reservation to the post is no more sustainable. According to the learned Counsel, this Court vide its judgment in Writ Petition No. 2202 of 2003 decided on 20.6.2007 found that the roster prepared by the management was not correct and, therefore, set aside the roster. Thereafter according to the learned Counsel, the roster has been set aside and it has been found that at the relevant time, the roster point was reserved for OBC candidate to which category the appellant belongs and therefore the appellant''s services could not have been terminated on that ground.
5. Shri Parchure, learned Counsel for the respondent points out that after this Court set aside the roster and remanded the matter for reconsideration by the Backward Class Cell, it has been found that the post to which the appellant appointed was in fact reserved for a Scheduled Caste category candidate and not for an OBC category candidate to which the appellant belongs. This fact is evident also from the judgment of this Court in Contempt Petition No. 133 of 2008.
6. Thus, we find no substance in the contention of the learned Counsel for the appellant. We, accordingly approve the finding of the learned Single Judge in this regard. No other point has been urged on behalf of the appellant.
7. In the result, the present Letters Patent Appeal fails and the same is dismissed accordingly.
