High Court · 2024

Legal Reasoning

(1) wp-6209-2019.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 6209 OF 2019Sushil Kumar S/o Baliram Karad,Age: 39 years, Occu: Nil,R/o: Near Anjali Hote,Morewadi, Ambajogai, Dist. Beed...PetitionerVersus1.The State of Maharashtrathrough its Principal Secretary, Department of Social Justice and SpeicalAssistance, VJ, NT, OBC & SBC WelfareDepartment, Mantralaya, Mumbai-32.2.The Director, Social Welfare Department,Maharashtra State, New Administrative Building, Pune,Email- [email protected] Regional/Divisional Deputy Commissioner,Social Welfare Department, Aurangabad Region,Aurangabad, Dist. Aurangabad.4.The Assistante Commissioner, Aurangabad,(earlier- Special District Social Welfare Officer)Social Welfare Department, Beed, Dist. Beed.5.Shri Saint Vittaleshwar Shikshan Prasarak Mandal,Shivajinagar, Parli Vaijinath,Through its Secretary,Anil S/o Ramdhan Rathod,Age. Major, Occ. Secretary,R/o Rathod Niwas, Behind Vittal Rukmini Mandir,Anandnagar, Ambajogai,Dist. Beed.6.Secondary Ashram School,Anandnagar, Ambajogai, Dist. Beed,Through its Headmaster,Namely-Santosh S/o. Anil Rathod...Respondents...Mr. K. D. Khade and Mr. R. G. Hange, Advocate for the Petitioner.Mr. N. S. Tekale, AGP for Respondent Nos.1 to 4.V. P. Golewar, Advocate for Respondent Nos.5 and 6. (2) wp-6209-2019.odt... CORAM : SMT. VIBHA KANKANWADI AND S. G. CHAPALGAONKAR, JJ.JUDGMENT RESERVED ON :- 04th MARCH 2024.JUDGMENT PRONOUNCED ON :- 18th MARCH 2024.JUDGMENT (Per: S. G. Chapalgaonkar, J.):- 1.Rule. Rule made returnable forthwith. With the consent ofthe parties, matter is taken up for final hearing at the stage ofadmission.2.The petitioner approaches this Court under Article 226 ofthe Constitution of India seeking directions against respondent nos.1 to4 to pay salary of the petitioner from non-salary grant-in-aid ofrespondent nos.5 and 6 within stipulated period. The petitioner hadalso made another prayer seeking directions against respondent nos.1to 4 to reinstate the petitioner with respondent no.6-Institution andgrant him permanent approval and consequential benefit. However,second prayer is not pressed into service by the petitioner during thecourse of hearing. 3.The contention of the petitioner is that he was appointed asan Assistant Teacher with respondent no.6-Ashram School w.e.f.01.07.2005. The appointment of the petitioner was approved vide orderdated 25.03.2009 issued by the Special District Social Welfare Officer,Beed / respondent no.4. The said approval was on ad-hoc basis for theperiod from 01.07.2005 to 19.06.2007. Although the petitioner wascontinued in service after 2007, no salary paid to him. Even, the hisproposal for permanent approval was withhold. The petitioner raisedgrievance regarding non-payment of salary as well withholding ofpermanent approval. No further steps have been taken by respondentnos.1 to 4. On 31.03.2018 and 01.09.2018 respondent nos.3 and 4conducted hearing as regards to the irregularities in management of (3) wp-6209-2019.odtrespondent nos.5 and 6. However, no further action is taken. In thisbackground, the petitioner seeks to issue Writ of Mandamus againstrespondent nos.1 to 4 for release of his salary from the year 2007onward from non-salary grant-in-aid of respondent nos.5 and 6.4.The respondent nos.5 and 6 filed affidavit-in-replycontending that the petitioner is not in service since June-2006 and notentitled to claim any salary. Further there is no provision by whichpayment of salary can be released from non-salary grant receivable torespondent-School or any private aided institution. It is pointed outthat the petitioner has approached the School Tribunal at Aurangabadunder Section 9 of the Maharashtra Employees of Private Schools(Conditions of Service) Regulation Act, 1977 vide Miscellaneous AppealNo.09/2019 against alleged termination of his services. The said Appealis pending for adjudication before the Tribunal. However, the petitionersuppressed the aforesaid facts from this Court. 5.The respondent nos.1 to 4 filed affidavit-in-reply statingthat the temporary approval was granted in favour of the petitioner asan Assistant Teacher for Academic Year 2005 to 2007. Thereafter, themanagement has not submitted proposal for continuation of services ofthe petitioner. In pursuance of the representation made by thepetitioner, respondent nos.4 had called upon respondent nos.5 and 6School to forward the proposal of the petitioner for the approval.However, aforesaid communication dated 23.04.2014 has not beenresponded by the management. The petitioner has alternate remedy toapproach the Regional Deputy Commissioner, (Social Welfare) forredressal of his grievance regarding grant of approval as perGovernment Resolution dated 03.10.2017. The Writ Petition for reliefsas claimed would not be maintainable. (4) wp-6209-2019.odt6.During course of hearing, the petitioner restricted hisprayers seeking directions against respondent nos.1 to 4 to pay himsalary dues from non-salary grants receivable to respondent nos.5 and 6School. Although petitioners prayers are not clear regarding period forwhich he is claiming the salary dues but from pleadings in the petition,it can be gathered that his claim is for the period from June-2007 to2016.7.It is apposite to refer the judgment of Supreme Court incase of Union of India Vs. Tarsem Singh1, wherein in paragraph 8 itis observed thus:“8.In this case, the delay of sixteen years would affect theconsequential claim for arrears. The High Court was not justifiedin directing payment of arrears relating to sixteen years, and thattoo with interest. It ought to have restricted the relief relating toarrears to only three years before the date of writ petition, or fromthe date of demand to date of writ petition, whichever was lesser.It ought not to have granted interest on arrears in suchcircumstances.” 8.The present petition is filed on 20.03.2019. Evidently byway of present petition the claim is raised for recovery of the salarydues for the period from 2007 to 2016. Apparently claim appears to bebarred by limitation. In any case, this Court would not be in a positionto entertain the prayer for recovery of the salary dues barred bylimitation. Pertinently, the petitioner approached the School Tribunalat Aurangabad contending that his services have been terminated videorder dated 20.06.2016. Therefore, as per his own case he is not inservice since three years before to filing of the present petition.9.Pertinently, prayers in this petition seeks directions onlyagainst respondent nos.1 to 4 to pay his salary from non-salary grantsreceivable to respondent nos.5 and 6. No prayer seeking directions for1(2008) 8 SCC 648. (5) wp-6209-2019.odtpayment of salary dues is made against respondent nos.5 and 6. Therecord shows that the services of the petitioner were approved till19.06.2007 only and thereafter, his proposal for approval was notforwarded to the respondents-Authorities. As such, when there is noapproval to the continuation of the services of the petitioner from theyear 2007 onwards, respondent nos.1 to 4 have no statutory obligationin the matter of payment of salary to the petitioner. We are, therefore,of the firm opinion that the prayer before us cannot be entertained inWrit jurisdiction as the petitioner failed to establish his statutory right.Further, there are disputed questions of facts which cannot be gone intounder Writ jurisdiction of this Court. However, in case the petitionerhas already availed any alternate remedy as permissible under law. Heshall be liberty to prosecute same without impeded by observationshereinabove. 10.Resultantly, Writ Petition stands dismissed.11.Rule is discharged.(S. G. CHAPALGAONKAR) (SMT. VIBHA KANKANWADI) JUDGE JUDGEDevendra/March-2024