Bhagwan v. The State of Maharashtra

Judgment

5. Mr Milind Patil, Advocate for the petitioner; Mr D.R. Kale, A.G.P. for respondents no.1, 2 & 5; Mr P.R.Nangare, Advocate for respondents no.3 & 4 2 W.P.No.337 of 2006

CORAM : SMT. NISHITA MHATRE AND M.T. JOSHI, JJ. DATE : 28th April, 2011 ORAL JUDGMENT (PER SMT. MHATRE, J.) The present petition has been filed by the petitioner to claim unpaid wages while he was working as an untrained Teacher with the respondents no.3 and 4.

2. The brief facts giving rise to the present petition are as follows :- On 5th December, 1994 the petitioner was appointed as a Teacher in the respondent no.4, a school for the deaf and dumb which is run by respondent no.3. At the time of appointment, the petitioner was informed that he would have to acquire the technical qualifications for teaching in such a school, within three years from the date of his appointment. Accordingly, the petitioner completed a training course and passed the examination conducted by Shri Swami Samarth Mukbadhir Teacher's Training Centre, Solapur. He obtained the degree of D. Ed. (HI) on 16th May, 1998. A proposal was sent by respondents no.3 & 4 to the District Social Welfare Officer, Ahmednagar i.e. respondent no.2 to grant approval to the appointment of the petitioner. Accordingly, approval was accorded for the petitioner's appointment on probation for two years on the scale of Rs.1200-30-1560-40-2040. 3 W.P.No.337 of 2006

3. On 2nd February, 1999 the Secretary, Rehabilitation Council, New Delhi withdrew the recognition granted to several training centres which trained persons for teaching in schools for the physically challenged. One such centre was Shri Swami Samarth Mukbadhir Teacher's Training Centre, Solapur, from where the petitioner had obtained his D.Ed. (HI) degree. Several persons who had obtained these qualifications through the Swami Samarth Mukbadhir Teacher's Training Centre, Solapur and the Rajiv Smruti Bahuuddeshiya Sanstha were affected by this decision to withdraw the recognition accorded to the aforesaid schools. Some of the teachers affected filed writ petitions before the principal seat of this Court at Bombay. The petitions were heard and certain directions were passed by the Division Bench, which were as follows :- "i) The Rehabilitation Council shall conduct examination for students of Rajiv Smruti Bahuuddeshiya Sanstha and Shri Swami Samarth Mook Badhir Teachers Centre who had appeared and passed the diploma course during the year 1994-95, 1995-96 and 1996-97 provided they had passed 10 + 2 examination and the names of the said students who pass the said examination would be entered in the register maintained by the Rehabilitation Council. 4 W.P.No.337 of 2006 ii) The diploma holders from the above two institutions who have been employed as trained teachers in deaf and dumb school and other similar schools for handicapped children will be continued in service on ad hoc basis subject to their passed the examination and State Government as well as concerned school shall release salary of such teachers. iii) The Rehabilitation Council shall conduct Bridge Course for the candidates who had passed D.Ed. (H.I) course from the aforesaid two institutions prior to 1994 and upon completion of the course their names will be entered in the register of the Council."

4. Indisputably, the petitioner did not file any writ petition at that stage nor did he challenge his termination from service effected on 22nd February, 1999 due to the de-recognition of his qualifications.

5. According to the petitioner he approached respondents no.3 & 4 for implementation of the aforesaid order of this Court passed in Writ Petition No.2718 of 2000 and other connected matters. However, the petitioner was not reinstated in service. It appears that the petitioner then acquired a Diploma in Education (HI) on 26th July, 2002 by successfully completing the examination conducted by the Ali Yavar Jung Institute for the Hearing Handicapped, Mumbai. The petitioner also obtained a registration certificate from the Rehabilitation Council of India and his name was entered onto the register of qualified Teachers for the handicapped. Armed with these qualifications the petitioner 5 W.P.No.337 of 2006 approached the Commissioner for Handicapped Welfare, Pune i.e. respondent no.5 herein pointing out that his legitimate demand for reinstatement in service with back wages was being denied by respondents no.3 and 4. As there was no response from respondent No. 5, the petitioner was constrained to file Writ Petition No.5744 of 2003 on

19.11.2003 before this Bench of the Court. Considering the pleadings contained in the writ petition, several directions were issued by the Division Bench to the State with respect to maintaining a list of employees of de-recognised schools in accordance with rule 25-A of the Maharashtra Employees of Private Schools Rules, 1981. Accordingly, a list was prepared and the petitioner's name was included in this list. An affidavit was filed by the Commissioner for Persons with Disabilities, Maharashtra State, Pune in the aforesaid writ petition, and in paragraph 13 he has averred as follows :- "I say and submit that in pursuance to the directions given by the Hon'ble High Court, Mumbai by judgement and order dated

25.7.2000, the petitioner ought to have been continued in service on ad hoc basis subject to his passing of Examination. However, the post held by the petitioner in the Respondent no.4 School was already filled in as stated by the Respondent No.2 in his affidavit. The petitioner was not continued. Since, the Hon'ble High Court, Mumbai given directions to continue the diploma holder from the two institutions mentioned in the said judgement. The petitioner was also entitled for continuation and further relief. As per the vacancy position as on today, received by the deponent, there is no vacancy for OBC category. However, there is vacancy in open 6 W.P.No.337 of 2006 category in Amravati, Solapur and Nagpur district. The petitioner can be absorbed in open category. Therefore, in pursuance to the directions given by the Hon'ble High Court at Mumbai, the petitioner will be absorbed in any of these 3 districts in open category as early as possible. I say and submit that the necessary instructions will be issued to the concerned authorities to release the salary of the petitioner.": The deponent has further stated that the petitioner would be absorbed in some other school as his name was included in the list maintained in accordance with rule 25-A of the M.E.P.S. Rules. Accordingly, the petitioner was absorbed in the Mukbadhir Vidyalaya, Shankarnagar, Nagpur run by the Mukbadhir Audyogik Sanstha, Shankarnagar, Nagpur on 7th August, 2004. In view of this development which was noted by the Division Bench of this Court, Writ Petition No. 5744 of 2003 was disposed of by the Division Bench on 30th August, 2004 indicating that nothing survived in the petition.

6. Based on the aforesaid averments contained in the affidavit of Commissioner for Persons with Disabilities, the petitioner has filed the present petition contending that he is entitled to back wages for the period during which he was unemployed on account of the de-recognition of his qualifications.

7. The learned Counsel appearing for the petitioner has urged that the aforesaid averments indicate that the petitioner was entitled to back 7 W.P.No.337 of 2006 wages for the period of his forced unemployment. He points out that the Division Bench in Writ Petition No.2718 of 2000 had directed that persons who were ex students of the institutes whose recognition had been cancelled should be continued to be employed on ad hoc basis, subject to their passing of a certain examination. The learned Advocate submits that since the petitioner had passed this examination, he ought to have been continued in service by respondents no.3 and 4 in accordance with the directions of this Court. He further submits that although the petitioner has been accommodated in another school today, he would be entitled to unpaid wages for the period from 1st April, 1996 to 31st May, 1997 and then from 1st June, 1997 to 20th February, 1999. He submits that besides this the petitioner would be entitled to back wages from 20th February, 1999 till he was reinstated in another school in August, 2004.

8. In our opinion, the submission of the learned Advocate for the petitioner, that the petitioner would be entitled to salary from 20th February, 1999 to August, 2004 is untenable. The reliance placed on the judgement of the Division Bench in Writ Petition No.2718 of 2000 is misconceived. The petitioner had not approached this Court along with the others who were aggrieved by the de-recognition of Shri Swami Samarth Mukbadhir Teacher's Training Centre, Solapur and Rajiv Smruti Bahuuddeshiya Sanstha The directions passed by this Court were in respect of the ex students of the aforesaid Centres who had appeared and passed the Diploma course during the years 1994-95, 8 W.P.No.337 of 2006 1995-96 and 1996-97. From the pleadings contained in the present writ petition, it is apparent that the petitioner had completed the training course in 1998. Therefore, in our opinion, he would not be covered by the aforesaid judgement. Apart from this, the petitioner's services had been terminated on 27th February, 1999 itself as indicated in the affidavit filed by respondents no.3 & 4 in reply to the present petition. That order of termination of his services has not been challenged by the petitioner at any point of time. In these circumstances, in our opinion, the petitioner would not be entitled to any relief with respect to the wages payable between 20.2.1999 till August, 2004. The learned Advocate for the petitioner was unable to point out any provision of law which requires the State or an institution to pay salary to a person whose name is included on the list maintained under rule 25-A. It must be noted here that the list maintained under rule 25-A is with respect to Teachers whose services are terminated because of the closure of the school in which the Teacher is employed either because of a voluntary closure by the management or because of the de-recognition of the school by the Department. This is not the same as de-recognition of a school from which a Teacher obtains the necessary qualifications for being appointed as a Teacher in any school. Therefore, the petitioner was not included on the list maintained under rule 25-A as a matter of right, but because of certain directions issued by this Court in Writ Petition No.5744 of 2003. Therefore, the question of paying any amount to the petitioner after his services were terminated on 27th February, 1999 till he was absorbed in the Mukbadhir Vidyalaya, Shankarnagar, Nagpur does not arise. 9 W.P.No.337 of 2006

9. It is contended on behalf of the respondents no.3 and 4 that the petitioner has sought the very relief claimed in the present petition that he had prayed for in his earlier petition, namely Writ Petition No.5744 of

2003. According to the learned Advocate appearing for respondents no. 3 and 4 the petitioner cannot seek the same relief now, which had been denied in the earlier petition.

10. It is not possible to accept this submission of the learned Counsel for respondents no.3 & 4. A person who has worked must be paid his salary. The petitioner has undeniably worked with respondents no.3 & 4 till his services were terminated on 20th February, 1999. Accordingly, he must be paid his salary which was due and payable to him till that date. It appears that the petitioner has not been paid wages for the days he worked after his services were approved by the District Social Welfare Officer at the rate due and payable to him. According to the petitioner he was paid a consolidated wage rather than the salary payable in the time scale of Rs.1200-30-1560-40-2040. The respondents no.3 & 4 in their affidavit have admitted that the basic salary paid to the petitioner with effect from 1st April, 1996 was Rs.975/-. This is obviously less than the amount payable to the petitioner.

11. The petition is, therefore, disposed of by directing the respondents 10 W.P.No.337 of 2006 to pay the petitioner his unpaid salary for the days he worked after his services were approved by the District Social Welfare Officer till his services were terminated on 27th February, 1999. The salary payable to the petitioner would be as mentioned in the order approving of his appointment as a Teacher, issued on 16th May, 1998. Petition disposed of accordingly. Rule made absolute, partly. No order as to costs. (M.T. JOSHI, J.) ( SMT. NISHITA MHATRE, J.) amj/wp337.06