VILAS DASHRATH MALI vs THE SECRETARY, SCHOOL EDUCATION DEPARTMENT AND 4 ORS.

(a),"Scheduled Castes and Scheduled Castes

converts to Buddhism","13 per

cent

(b),"Scheduled Tribes including those living outside

the specified areas","7 per

cent

(c),Denotified Tribes and Nomadic Tribes,"4 per

cent

(d),Other Backward Classes,"10 per

cent.

has observed thus :,,

“In the instant case, the appointment was extended from time to time on year to year basis on several occasions. This Court has clearly held that",,

in the absence of a candidate belonging to a Nomadic Tribe the rule enjoins year to year appointment only if an available candidate does not belong to,,

the backward classes. The appointment order also clearly stipulates that terms of appointment and conditions of service shall be as laid down in the,,

M.E.P.S. (Conditions of Service) Regulation Act, 1977 and the rules made thereunder and that the appointment is conditional subject to the approval",,

of the Education Department and that the post is reserved for SC and if candidate of that category will be available, the services will be terminated.",,

In the instant case, the appointment of the first respondent was approved by the Education Department on all occasions and that the Management, the",,

Teacher and the Department are all aware that the post in question has been granted on totally temporary basis due to the backlog of ST candidate. It,,

is also a matter of record that the appointment of the first respondent was sanctioned on the basis of the approval and NOC of threeÂmember,,

Committee.â€​,,

This view of the Hon'ble Apex Court is reiterated in judgment of Kankanwali Shinkshan Sanstha and Ors. V/s.M.R. Gavali & Ors. (Supra),,

wherein the Hon'ble Apex Court had opportunity to deal with Rule 9(9)(a) and the Court observed thus :Â​,,

“The law laid down by this Court on the interpretation of Rule 9(9)(a) is in our view resolves the controversy in the present case. The first,,

respondent was appointed in 1994. The vacancy was reserved for an ST candidate. At that stage there was no candidate belonging to ST available.,,

There is no dispute about the fact that the first respondent belongs to the Hindu Mali community which is an OBC. In the circumstances, in terms of",,

the respondent belong to the Hindu Mali community which is an OBC. In the circumstances, in terms of the provisions of Rule 9(9)(a) since no other",,

candidate belonging to ST was available, the first respondent was entitled to appointment on a regular basis. This Court, in the above case, held that in",,

the absence of a candidate belonging to the reserved category concerned, the rule enjoins year to year appointment only if a available candidate does",,

not belong to a backward class. The respondent belonging as he does to a backward class was entitled to a regular appointment.â€​,,

In the light of legal position and the authority to pronouncement of the Hon'ble Apex Court, the action of the respondents cannot be sustained. The",,

petitioners are entitled for being confirmed as Assistant Teacher in terms of their order of appointment and they are entitled for drawing the,,

consequential benefits being confirmed as an Assistant Teacher on completion of probation of two years.,,

In the light of the aforesaid observations the respondent No.2 and 3 are directed to grant approval for the appointment of the petitioners as,,

Assistant Teachers on completion of the period of probation in terms of their order of appointed as Assistant Teacher and confer all ancillary benefits,,

including the difference in pay, flowing from such confirmation as Assistant Teacher. The arrears are directed to be paid within a period of three",,

months.,,

With the aforesaid observations, writ petitions are allowed. Rule made absolute in aforesaid terms.",,