THE STATE OF MAHARASHTRA THR JOINT DIRECTOR AND ANOTHER v. KIRAN SHALIGRAM PATIL AND OTHERS
Case Details
902wp8281-20 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.8281 OF 2021 THE STATE OF MAHARASHTRA THR JOINT DIRECTOR AND ANOTHER VERSUS KIRAN SHALIGRAM PATIL AND OTHERS WITH WRIT PETITION NO.8290 OF 2021 THE STATE OF MAHARASHTRA THR JOINT DIRECTOR AND ANOTHER VERSUS YOGESH RAJARAM PATIL AND OTHERS WITH WRIT PETITION NO.8291 OF 2021 THE STATE OF MAHARASHTRA THR JOINT DIRECTOR AND ANOTHER VERSUS SUBODH LEELACHAND PATIL AND OTHERS WITH WRIT PETITION NO.8294 OF 2021 THE STATE OF MAHARASHTRA THR JOINT DIRECTOR AND ANOTHER VERSUS RAJENDRA SHRIRAM THIGLE AND OTHERS WITH WRIT PETITION NO.8295 OF 2021 THE STATE OF MAHARASHTRA THR JOINT DIRECTOR AND ANOTHER VERSUS SUBHASH YOGIRAJ SAWANT AND OTHERS WITH WRIT PETITION NO.8299 OF 2021 THE STATE OF MAHARASHTRA THR JOINT DIRECTOR AND ANOTHER VERSUS Page 1 of 14 902wp8281-20 BABURAO PANDURANG MORE AND OTHERS WITH WRIT PETITION NO.8300 OF 2021 THE STATE OF MAHARASHTRA THR JOINT DIRECTOR AND ANOTHER VERSUS SANJEEVANI SUKDEO BOBADE AND OTHERS WITH WRIT PETITION NO.8305 OF 2021 THE STATE OF MAHARASHTRA THR JOINT DIRECTOR AND ANOTHER VERSUS VINOD PITAMBAR PATIL AND OTHERS WITH Mr. S. R. Yadav-Lonikar AGP for Petitioners Mr. R. S. Deshmukh, Senior Advocate i/by Mr. H.S. Bali, Advocate for Respondent No.1 Mr. V. D. Hon, Senior Advocate, i/by Mr. A.V. Hon, Advocate for Respondents Nos. 2 and 3 Mr. A. D. Shinde, Advocate for Respondent No.4 WITH WRIT PETITION NO.3705 OF 2022 THE SECRETARY JALGAON ZILLA MARATHA VIDYA PRASARAK SAHKARI SAMAJ LTD. JALGAON VERSUS VINOD PITAMBAR PATIL AND OTHERS WITH WRIT PETITION NO.3706 OF 2022 THE SECRETARY JALGAON ZILLA MARATHA VIDYA PRASARAK SAHKARI SAMAJ LTD JALGAON VERSUS SANJEEVANI KUKHDEO BOBADE AND OTHERS WITH WRIT PETITION NO.3707 OF 2022 THE SECRETARY JALGAON ZILLA MARATHA VIDYA PRASARAK SAHKARI SAMAJ LTD JALGAON VERSUS SUBHAS YOGIRAJ SAWANT AND OTHERS Page 2 of 14 902wp8281-20 WITH WRIT PETITION NO.3708 OF 2022 THE SECRETARY NILESH RANJIT BHOITE AND ANOTHER VERSUS KIRAN SHALIGRAM PATIL AND OTHERS WITH WRIT PETITION NO.3709 OF 2022 THE SECRETARY JALGAON ZILLA MARATHA VIDYA PRASARAK SAHKARI SAMAJ LTD AND ANOTHER VERSUS YOGESH RAJARAM PATIL AND OTHERS WITH WRIT PETITION NO.3710 OF 2022 THE SECRETARY JALGAON ZILLA MARATHA VIDYA PRASARAK SAHKARI SAMAJ LTD. JALGAON VERSUS BABURAO PANDURANG MORE AND OTHERS WITH WRIT PETITION NO.3711 OF 2022 THE SECRETARY JALGAON ZILLA MARATHA VIDYA PRASARAK SAHKARI SAMAJ LTD AND ANOTHER VERSUS SUBODH LEELACHAND PATIL AND OTHERS WITH WRIT PETITION NO.3712 OF 2022
Legal Reasoning
THE SECRETARY JALGAON ZILLA MARATHA VIDYA PRASARAK SAHKARI SAMAJ LTD JALGAON VERSUS RAJARAM SHRIRAM THIGLE AND OTHERS … Mr. V. D. Hon, Senior Advocate i/by Mr. A. V. Hon, Advocate for Petitioners Mr. R. S. Deshmukh, Senior Advocate i/by Mr. H.S. Bali, Advocate for respondent No.1 Mr. S. R. Yadav Lonikar, AGP for the respondents State. CORAM DATE : RAVINDRA V. GHUGE, J. : 25th March, 2022 Page 3 of 14 902wp8281-20 ORDER: 1. In the petitions filed by the State of Maharashtra and another, the judgments and orders of the learned School Tribunal, Nashik in the appeals preferred by the original appellants, delivered on 22.02.2021, have been challenged. 2. As independent judgments have been delivered in each of the appeals for which the State has filed eight writ petitions, identical directions have been issued by the School Tribunal, which are reproduced as under: “vkns”k 1- lnjps vihy eatwj dj.;kr ;sr vkgs- 2- fnukad 07-08-2013 jksthP;k vkns’kkuqlkj lkeusokys dz- 2 ;kauh vfiykFkhZph dsysyh lsoklekIrh csdk;ns”khj vlY;us rks lsoklekIrhpk vkns”k jíckry dj.;kr ;sr vkgs- 3- vfiykFkhZl iwoZinkoj] iwoZixkjkoj] lsoklkrR;klg o rnkuq’kafxd loZ vkfFkZd ykHkkalg iwoZor lsosr gtj d#u ?;kos vls lkeusokys dz- 1 o 2] 5 o 6 ;kauk vknsf”kr dj.;kr ;sr vkgs- 4- lkeusokys dz- 3 o 4 ;kauh vfiykFkhZP;k fu;qDrhpk ekU;rk izLrko eatwj d#u] ;ksX; rs vkns”k nsÅu vfiykFkhZP;k ekxhy Fkdhr osruklkBhps o fu;fer osruklkBhps vuqnku miyC/k d#u |kos- 5- [kpkZps vkns”k ukghr- Page 4 of 14 902wp8281-20 6- lkeusokysauh ;k vkns”kkph vaeyctko.kh ;k U;k;fu.kZ;kiklwu 40 ¼ pkGhl QDr½ fnolkaP;k vkr djkoh- ¼ ojhy laiw.kZ U;k;fu.kZ; [kqY;k U;k;d{kkr vknsf”kr] m)ksf’kr o lax.kdeqfnzr dj.;kr vkyk-½” 3. It is undisputed that an Administrator appointed on the Management namely the Jalgaon Zilla Maratha Vidya Prasarak Sahakari Samaj Ltd. Jalgaon, had issued the orders of termination of the appellants. 4. Seven appellants out of eight were appointed on 11.10.2010 and one appellant namely Subhod Lilachand Patil was appointed on 16.12.2010. They had preferred Appeal Nos. 57 to 60 of 2013 and 61 to 64 of 2013 for challenging the orders of termination dated 07.08.2013, vide which, they were terminated with retrospective effect right from the dates of their appointment. 5. The learned Division Bench of this Court has settled the issue as regards retrospective termination in Assaram Raibhah Dhaga Vs. Executive Engineer and others, 1989 (II) CLR 331. In the very opening paragraph of the judgment, the learned Division Bench has concluded that termination with retrospective effect, be the appointee a temporary, daily wager or probationer, is unforeseen in law and that is the ratio Page 5 of 14 902wp8281-20 laid down in the said judgment. It was then held in Paragraph Nos. 3 to 6 as under:- “3. The petitioner's learned Counsel Miss Purohit is perfectly justified in making a grievance that it is unthinkable that an employee's services can be terminated with retrospective effect, as done in the present case. We joint learned Counsel in her astonishment. For that matter, one of the conditions in the letter of appointment is that if the petitioner desired to resign he was liable to pay one month's salary or give one month's notice. It is, therefore, ironical that on the other hand, the petitioner's services were terminated with retrospective effect. 4. However, the respondent's learned Counsel Mr. Bhatkar ventures that the date of termination, namely March 1,1986 in the letter of termination must be typographical error. This is an ipse dixit, it is purely conjecture and speculative reasoning. Significantly enough, in the affidavit-in-reply, no such case of a typographical error is even faintly suggested. For that matter, despite the fact that in the petition it has been categorically stated in no uncertain terms that by this letter of termination, the petitioner's services were terminated with retrospective effect from March 1, 1986 not even the whisper of a denial is to be found in the affidavit- in-reply. Thus the myth of a typographical error stated across the Bar can safely be ruled out. 5. Mr. Bhatkar now takes refuge that the petitioner's appointment was merely temporary. However, he is unable to say under what provisions of law the petitioner's Page 6 of 14 902wp8281-20 employment, even if temporary, could be terminated with retrospective effect. 6. In the result, the termination order, dated 11 March, 1986, is set aside. The petitioner shall be paid his salary as if he had continued to be in employment.” The orders of termination are therefore unsustainable. The Management has terminated these appellants for the 6. 7. reason that their appointments were not granted approval. The learned Full Bench of this Court in St. Ulai High School and another Vs. Devendraprasad Jagannath Singh and another, 2007 (1) Mh.L.J. 597, has held that lack of approval cannot be a ground for termination of an employee. This leads to a presumption that a Management can continue an employee without approval. However, this would have ramifications insofar as the payment of salaries of the appointees are concerned since the salary grants would be available only if the approval is granted. Unless an appointment is approved by the competent authority, the salary bills for such appointees would not be cleared by the competent authority and the payment of salary through the salary grants would not be permissible. 8. The learned Senior Advocate appearing on behalf of the Management which has filed Writ Petition Nos. 3705 to 3712 of 2022
Decision
submits on instructions that these petitions can be disposed off since the appellants have been reinstated in service under the directions of the Page 7 of 14 902wp8281-20 School Tribunal and in view of their termination have been effected retrospectively. 9. Hence, Writ Petition Nos. 3705 to 3712 of 2022 are disposed off. Nevertheless, the liberty of the Management to forward proposals of the appointees for approval cannot be curtailed. 10. The learned AGP has placed a Chart on record pertaining to the appointments of the appellants ( 6 pages). There are 14 columns in the said chart which pertains to the Educational qualification, experience, roster point reservation etc. with regard to the appointments of these appellants. The said chart is taken on record and marked ‘X-1’ collectively for identification. 11. The judgment delivered by the learned Single Judge Bench of this Court at the Principal Seat in Air India Staff Colony Association Vs. Moreshwar V. Patil and others 2007 (5) BCR 63 is cited by the learned AGP. He contends that the School Tribunal cannot get into the arena of deciding whether approval should be granted or whether approval deserves to be granted or whether approval has been wrongfully refused and consequentially issue directions to the competent authority to grant approval. 12. I have considered the submissions of the learned AGP as well as the learned Senior Advocates appearing for the respective sides. Page 8 of 14 902wp8281-20 13. It is obvious from the judgment delivered by the learned Single Judge in Air India Staff Colony Association (Supra) from paragraph 1, relevant portion being as under:- “ Petitioner is also challenging and seeking appropriate writ, order and directions directing the respondent Nos. 2 and 3 viz. the Deputy Director of Education, Mumbai Region and Education Inspector (West Zone), to grant approval to the posts of respondent No.1 and thereafter to release his salary.” The learned single Judge has thereafter noted that the petitioner school was receiving 100% grant from the Government and recorded in paragraph 3, relevant portion as under:- “ Thereafter, the petitioner made an application seeking approval of respondent No.1 to the said post and during the first year, approval was granted. However, during the second year, according to the petitioner, department did not grant approval to the post of respondent No.1 and, therefore, they had no option but to terminate the services of respondent No.1.” The learned Single Judge then observed in paragraph 4, relevant portion as under:- “Though the Educational Inspector was made a party respondent before the Tribunal, no reply was filed by the Educational Inspector and the Tribunal set aside the order of termination which was passed by the Management and directed reinstatement with full backwages. The petitioner being aggrieved by the said order has filed this petition. The petitioner is also Page 9 of 14 902wp8281-20 seeking a direction (for) directing the respondents to grant approval to the post of respondent No.1.” 14. The learned Single Judge has then recorded the procedure to be followed for filling in the posts. It was further concluded that the appointments made were in order and the reinstatement of the appellants was sustained. Insofar as the prayer which was made for the first time before the learned Single judge for grant of approval to the post of the appointee, the learned Single Judge directed the competent authority to grant approval to the posts of the appointees. 15. Section 9 of the Maharashtra Employees of Private Schools (Conditions of Services) Regulation Act, 1977 reads as under:- 9. Right of appeal to Tribunal to employees of private schools. - (1) Notwithstanding anything contained in any law or contract for the time being in force, [any employee in a private school- (a) who is dismissed or removed or whose services are otherwise terminated or who is reduced in rank, by the order passed by the Management; or (b) who is superseded by the Management while making an appointment to any post by promotion; and who is aggrieved, shall have a right of appeal and may appeal against any such order or supersession to the Tribunal constituted under section 8]: Page 10 of 14 902wp8281-20 Provided that, no such appeal shall lie to the Tribunal in any case where the matter has already been decided by a Court of competent jurisdiction or is pending before such Court, on the appointed date or where the order of dismissal, removal, otherwise termination of service or reduction in rank was passed by the Management at any time before the 1st July 1976. (2) Such appeal shall be made by the employee to the Tribunal, within thirty days from the date of receipt by him of the order of dismissal, removal, otherwise termination of service or reduction in rank, as the case may be: Provided that, where such order was made before the appointed date, such appeal may be made within sixty days from the said date. (3) Notwithstanding anything contained in sub-section (2), the Tribunal may, entertain an appeal made to it after the expiry of the said period of thirty or sixty days, as the case may be, if it is satisfied that the appellant has sufficient cause for not preferring the appeal within that period. (4) Every appeal shall be accompanied by a fee of [five hundred] rupees, which shall not be refunded and shall be credited to the Consolidated Fund of the State. 16. There can be no debate that the School Tribunal, while considering the cause of action against termination of an employee can go into the aspect as to whether the prior approval of the appropriate Page 11 of 14 902wp8281-20 Government was sought and whether the procedure for appointing a candidate was followed. Nevertheless, while considering these aspects, the School Tribunal cannot venture into the aspect as to whether the approval was erroneously refused and take upon itself the task of deciding, whether the approval deserves to be granted and issue directions to the competent authority to grant approval. The School Tribunal need not step into the shoes of the competent authority which has the jurisdiction to decide as to whether the approval deserves to be granted or not. Rejection of the proposal for approval would be an independent cause of action to both, the appointing authority- Management as well as the appointee who is aggrieved by the refusal of the approval. Both can approach this Court for challenging the decision of the Education Officer/Deputy Director, Vocational Education and Training/ competent authority. It is well settled that if an Education Officer deals with a particular aspect, which falls within his jurisdiction like, for the sake of illustration, a case of deciding the seniority or approving the appointment of a headmaster, the aggrieved party can approach this Court for challenging such decision, save and except a cause of action falling under section 9 of the MEPS Act, 1977. 17. In the instant case, the appellants were terminated with retrospective effect on the ground of lack of approval. The appellants Page 12 of 14 902wp8281-20 before the Tribunal challenged their termination in view of the judgment delivered by the learned Full Bench in St. Ulai High School (Supra) since lack of approval cannot be a ground for termination. The litigating parties have not cited any judicial pronouncement of this Court taking a view that the School Tribunal, while deciding the issue of termination, can scrutinize i.e. cause a judicial review of the act of the competent authority in refusing to grant approval and draw a conclusion that the approval has been unjustifiably refused and further issue directions to the authority to grant approval. In my view, these aspects are to be dealt with by the competent authority in view of the jurisdiction vested in it by law. 18. Considering the above, the writ petitions filed by the State Government can be allowed to the extent of quashing the direction of the Tribunal by which the petitioners were directed to accept the proposal for approval and grant approval and thereafter issue appropriate directions for releasing the salary of the appellants through the salary grants. Such direction was based on the presumption that the proposal is pending, though the petitioners submit that the proposals forwarded were rejected on 11.07.2013. 19. The appellants had approached this Court in Writ Petitions seeking directions from this Court that their pending proposals may be decided. As their termination was effected and their appeals against the Page 13 of 14 902wp8281-20 termination were pending and by the interim orders of the Tribunal, they were reinstated in service, these petitions were withdrawn. It is equally undisputed that the Management has not challenged the rejection of approval dated 11.07.2013 since the employees as well as the Management were litigating before the School Tribunal. 20. In view of the above, these petitions are partly allowed and Clause 4 of the operative part of the order of the School Tribunal is quashed and set aside. The observations made by the School Tribunal in support of Clause 4 of the operative part which has been held to be illegal and beyond jurisdiction of the Tribunal, would stand set aside. 21. Needless to state, the Management or the appellants would be at liberty to approach the appropriate forum for questioning the rejection of the proposals for approval vide order dated 11.07.2013. 22. It goes without saying that all contentions of the Management as well as the competent authority with regard to the rejection of the proposals vide order dated 11.07.2013, are kept open. ( RAVINDRA V. GHUGE, J. ) JPC Page 14 of 14