Case Note & Summary
The petitioner, Anil Bhanudas Shedge, was appointed as an Assistant Teacher for Physical Training by the respondent No.1 Education Society on 20th April 1999, pursuant to an advertisement for an open category post. However, the appointment was made against a reserved category post (Scheduled Caste) without any prior advertisement for that category. The petitioner worked until 30th April 2002, when his services were terminated. He filed an appeal before the School Tribunal, which dismissed it on the ground that the petitioner had accepted the appointment and worked for three years, thus estopped from challenging the validity of the appointment. The High Court held that the appointment was illegal ab initio as it violated the mandatory provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and the Rules, which require that all vacancies, including reserved category posts, be advertised. The court further held that estoppel cannot cure an illegality, and the petitioner was entitled to be considered for the open category post. The court set aside the School Tribunal's order and directed the respondents to consider the petitioner's appointment against the open category post, if otherwise eligible, and to pay consequential benefits.
Headnote
A) Service Law - Appointment - Reserved Category Post - Advertisement - The appointment of a teacher against a reserved category post without prior advertisement for that category is illegal and void ab initio, as it violates the mandatory provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and the Rules framed thereunder. (Paras 1-10) B) Service Law - Estoppel - Acquiescence - A teacher cannot be estopped from challenging an illegal appointment merely because he accepted the appointment and worked for a period, as estoppel cannot cure an illegality or confer validity on a void act. (Paras 11-15) C) Service Law - Termination - Retrenchment - The termination of a teacher appointed against a reserved post without proper advertisement is not retrenchment under the Industrial Disputes Act, 1947, but a consequence of the invalidity of the appointment itself. (Paras 16-20)
Issue of Consideration
Whether the appointment of the petitioner against a reserved category post without prior advertisement for that category is valid, and whether the School Tribunal erred in dismissing the appeal on grounds of estoppel and acquiescence.
Final Decision
The High Court allowed the writ petition, set aside the School Tribunal's order, and directed the respondents to consider the petitioner's appointment against the open category post, if otherwise eligible, and to pay consequential benefits.
Law Points
- Appointment against reserved category post without advertisement
- Violation of Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act
- 1977
- Section 5
- Rule 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules
- 1981
- Right to be considered for open category post
- Estoppel cannot cure illegality
