The Bombay High Court has affirmed that an OBC candidate appointed under a temporary vacancy reserved for SC, ST, and NT categories, and who served continuously for three years, is entitled to permanency under the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act. The judgment clarifies that temporary appointments under Section 9(9)(a) do not negate the right to regularization upon prolonged service, especially where no eligible candidates from reserved categories were available.
Background & Facts
The Dispute
The petitioners, Savitribai Phule Shikshan Sanstha (through its Secretary) and Savitribai Phule Primary School (through its Head Master), challenged the order dated 07-07-2014 passed by the School Tribunal, Aurangabad, which allowed the appeal of respondent no.1, Rohidas Sahebrao Sawale, and reinstated him with consequential benefits. The dispute arose from the termination of respondent no.1’s services on 30-04-2001, following his appointment as an Assistant Teacher in 1997.
Key Facts
- The petitioners issued an advertisement on 20-06-1997 for three Assistant Teacher posts reserved exclusively for candidates belonging to Scheduled Castes (SC), Scheduled Tribes (ST), and Nomadic Tribes (NT).
- The advertisement explicitly stated: "In case candidates from the above categories are not available, preference shall be given to candidates from other categories."
- Respondent no.1, belonging to the Other Backward Classes (OBC) category, applied for the post, was interviewed, selected, and appointed.
- He served continuously for three academic years: 1997-1998, 1998-1999, and 1999-2000.
- On 10-07-2000, his designation was changed from "Assistant Teacher" to "Shikshan Sevak" under a new scheme introduced by the Education Department.
- His services were terminated effective 30-04-2001, with the reason cited that his appointment was temporary and intended only to fill a backlog of reserved posts.
- The Education Department had approved his service during all three years.
- Respondent no.1 did not submit a Hamipatra (affidavit of non-employment) required under the Shikshan Sevak Scheme.
Procedural History
- 20-06-1997: Advertisement issued for Assistant Teacher posts reserved for SC, ST, NT.
- 1997-1998 to 1999-2000: Respondent no.1 served continuously as Assistant Teacher.
- 10-07-2000: Designation changed to "Shikshan Sevak" under new scheme.
- 31-01-2001: Termination order issued, effective 30-04-2001.
- 2001: Respondent no.1 filed Appeal No. 229 of 2001 before the School Tribunal, Aurangabad.
- 07-07-2014: School Tribunal allowed the appeal, set aside termination, and directed reinstatement with consequential benefits.
- 12-03-2026: Writ petition heard and reserved by the Bombay High Court.
- 17-03-2026: Judgment pronounced dismissing the writ petition.
The Parties' Positions
Petitioners (School Management):
- Argued that respondent no.1 was never eligible for the reserved posts as he belonged to OBC, not SC/ST/NT.
- Claimed his appointment was strictly temporary to fill backlog, and could not ripen into permanency.
- Asserted that his acceptance of the "Shikshan Sevak" designation in 2000 forfeited all claims to the earlier Assistant Teacher post.
- Contended that the Education Department refused approval for his Shikshan Sevak appointment due to non-submission of Hamipatra.
Respondent no.1 (Employee):
- Argued that the advertisement permitted appointment from other categories if reserved category candidates were unavailable.
- Emphasized continuous service of three years with departmental approval.
- Invoked Section 9(9)(a) of the MEPS Act to assert entitlement to permanency after probation.
- Cited judicial precedents supporting regularization of long-serving temporary employees.
Relief Sought
The petitioners sought quashing of the School Tribunal’s order dated 07-07-2014 and confirmation of the termination. The respondent sought reinstatement, back wages, and all consequential benefits from the date of termination.
The Legal Issue
The central question was whether Section 9(9)(a) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act permits the regularization of an OBC candidate appointed to a post reserved for SC, ST, or NT, after three years of continuous service in the absence of eligible candidates from the reserved categories.
Arguments Presented
For the Appellant/Petitioner
The petitioners contended that the appointment of respondent no.1 was inherently invalid because he did not belong to any of the reserved categories (SC/ST/NT) for which the posts were advertised. They relied on the principle that reservation policies cannot be diluted by permitting non-reserved category candidates to claim permanency. They further argued that the change in designation to "Shikshan Sevak" in 2000 constituted a new appointment, and since respondent no.1 failed to comply with the Hamipatra requirement, his service under that scheme was invalid. Consequently, he forfeited any claim to the earlier position. The petitioners also cited the Education Department’s refusal to approve his Shikshan Sevak appointment as conclusive evidence that his service lacked legal sanction after 2000.
For the Respondent/State
The respondent countered that the advertisement explicitly allowed appointment from other categories if reserved category candidates were unavailable. He emphasized that he was selected, appointed, and continuously employed for three years with the approval of the Education Department. He invoked Section 9(9)(a) of the MEPS Act, which permits temporary appointment of non-reserved category candidates when reserved category candidates are not available, and argued that such temporary appointments, when extended for a prolonged period, must ripen into permanency. He relied on multiple precedents, including Shakuntala Shirbate v. Industrial Weaving Co-Operative Housing Society, and judgments of the Bombay High Court, which held that continuous service beyond probationary periods creates a legitimate expectation of regularization.
The Court's Analysis
The Court undertook a detailed examination of Section 9(9)(a) of the MEPS Act, which states: "In case it is not possible to fill in the teaching post for which a vacancy is reserved for a person belonging to particular category of Backward Classes, the post 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 on an year to year basis by a candidate not belonging to the Backward Classes."
The Court observed that the advertisement of 20-06-1997 clearly contemplated the possibility of non-reserved category candidates being appointed if reserved category candidates were unavailable. The respondent was selected, appointed, and served continuously for three academic years without any objection from the Education Department. The Court noted that the department had approved his service annually, indicating official recognition of his appointment.
"The fact that the respondent was allowed to serve for three consecutive years with the approval of the Education Department, and no fresh advertisement was issued during this period, indicates that the appointment was not merely a stop-gap measure but a de facto filling of the vacancy."
The Court rejected the petitioners’ argument that the change in designation to "Shikshan Sevak" extinguished the respondent’s rights. It held that the change was administrative in nature and did not constitute a new appointment. The failure to submit a Hamipatra was a procedural lapse, not a substantive disqualification, especially since the respondent had already been serving under the same conditions.
The Court further held that the School Tribunal correctly applied the law by relying on Shakuntala Shirbate and other precedents, which establish that when a temporary employee serves continuously beyond the probationary period without being regularized, the employer cannot arbitrarily terminate the service. The Tribunal’s reliance on judicial precedents was neither erroneous nor perverse.
The Court emphasized that the MEPS Act is a welfare legislation designed to protect the interests of school employees. Denying permanency to an employee who served for three years under a vacancy that remained unfilled due to lack of eligible candidates from reserved categories would defeat the very purpose of the Act.
The Verdict
The writ petition was dismissed. The Court upheld the School Tribunal’s order dated 07-07-2014, directing the reinstatement of respondent no.1 with all consequential benefits from the date of termination, 30-04-2001, until reinstatement. The petitioners were directed to pay arrears of salary, allowances, and other benefits as if the respondent had never been terminated. No specific monetary figure was quantified in the judgment, but the direction for "all consequential benefits" includes back wages, increments, and service continuity for pension and other entitlements.
What This Means For Similar Cases
Continuous Service Triggers Right to Permanency
- Practitioners must now argue that any temporary appointment under Section 9(9)(a) of the MEPS Act, if extended beyond two years without regularization, creates a legitimate expectation of permanency.
- Employers cannot rely on technicalities like non-submission of Hamipatra or change in designation to avoid regularization after prolonged service.
- The burden shifts to the employer to prove that the employee was not performing satisfactorily or that a reserved category candidate became available during the service period.
Reservation Advertisements Must Be Interpreted Liberally
- Advertisements that permit appointment from "other categories" in the absence of reserved category candidates must be construed in favor of the appointee.
- A candidate selected under such a clause, even if from OBC, cannot be treated as an unauthorized appointee if service was approved by the competent authority.
- Courts will not permit employers to retroactively invalidate appointments after years of continuous service.
School Tribunals Are Proper Forums for Service Disputes
- The judgment reinforces the jurisdiction of School Tribunals under the MEPS Act to adjudicate disputes relating to appointment, termination, and regularization.
- High Courts must exercise restraint in interfering with such tribunals unless there is a clear error of law or perversity in findings.
- Judicial precedents cited by tribunals on regularization of long-serving temporary employees must be respected unless clearly distinguishable.
