High Court
Legal Reasoning
1Writ Petition 10691 of 2017.odtTHE HIGH Court OF JUDICATURE AT BOMBAY,BENCH AT AURANGABAD.WRIT PETITION NO. 10691 OF 20171.Rajdharma Shikshan Prasarak Mandal,Ambad, Taluka Ambad, Dist. Jalna, Through its Secretary, Smt. Taramati Sahebrao Kharat Age: 60 years, Occu. Secretary of the Trust, R/o Ambad, Tq. Ambad, Dist. Jalna.2.Savitribai Phule Secondary School,Parner, Taluka Ambad, District: Jalna Through its Head Master Abhimanyu s/o Baburao Gadhave, Age: 42 years, Occu. Service, R/o Ambad, Tq. Ambad, Dist. Jalna.… Petitioners(Orig. Respondents) V E R S U S1.Uddhav s/o Bhimrao JadhavAge: 45 years, Occu. Assistant Teacher (Presently terminated), Savitribai Phule Secondary School, Parner, Taluka Ambad,District: Jalna.2.Education Officer (secondary),Zilha Parishad, Jalna.… Respondents(Ori. Petitioners) …Mr. S. B. Deshpande, Senior Advocate, i/b Mr. Swapnil A. Deshmukh,a/w Mr. Shyeyas Deshpande, Advocates for Petitioners. 2Writ Petition 10691 of 2017.odt Mr. Dhananjay Mane, h/f Mr. Milind Patil, Advocates for RespondentNo.1. Mr. K. B. Jadhavar, AGP for Respondent No.2.…ANDCIVIL APPLICATION NO. 995 OF 2023IN WP/10691/2017Uddhav Bhimrao Jadhav.… ApplicantV E R S U SRajdharma Shikshan Prasarak Mandal and others.… RespondentsANDCIVIL APPLICATION NO. 8835 OF 2024IN WP/10691/2017Uddhav S/o. Bhimrao Jadhav.… ApplicantV E R S U SRajdharma Shikshan Prasarak Mandal and others.… RespondentsCORAM : KISHORE C. SANT, J.RESERVED ON: 8th October, 2024.PRONOUNCED ON : 11th December, 2024.PER COURT : .The Management of the school has approached this Court 3Writ Petition 10691 of 2017.odtchallenging a judgment and order dated 17th April, 2017 passed by thelearned Presiding Officer, School Tribunal, Aurangabad Division,Aurangabad in Appeal No.5 of 2016. The Tribunal has partly allowedthe appeal of respondent No.1 (hereinafter referred to as “appellant”)and directed to reinstate him to his original position with continuity ofservice with all consequential benefits. The petitioners / Managementand the Education Officer are further directed to pay the arrears ofsalary and back-wages to respondent No.1 / appellant from the dateof termination till the date of reinstatement to the extent of 50%.Further, petitioner Nos.1 and 2 are directed to pay amount ofRs.5,000/- the respondent No.1 towards costs of the appeal. 2The case of the appellant in short is that the petitionerNo.1 is Trust running educational institutions. Petitioner No.2 is theSecondary School run by petitioner No.1. Respondent No.1 /appellant was appointed as an Assistant Teacher in the year 2001,pursuant to an advertisement published in daily newspaper. Pursuantto the selection process, the appellant came to be selected and wasgiven an appointment with effect from 1st August, 2001. Till 2006-2007, the school was being run on non-aided basis. In the year 2007,the school started receiving grant-in-aid. It is only thereafter, theproposal for approval of the individual person was sent to respondent 4Writ Petition 10691 of 2017.odtNo.2 / Education Officer. Alongwith proposal, copies of degreecertificates of the appellant were not sent and it is for this reason theproposal of the appellant was not processed by the Education Officer.It is the allegation of the appellant that the Management intentionallydid not send proposal in proper form, so as to appoint son of thePresident of petitioner No.1 in the school. A proposal was againsubmitted on 6th July, 2009 for approval. The Deputy Director ofEducation, Aurangabad vide Communication dated 10th December,2010 confirmed that the appellant possesses requisite educationalqualification i.e. B.Com., B.A., B.Ed.. The Deputy Director ofEducation directed the Education Officer to consider the proposal ofthe appellant. Still the Education Officer did not process the proposalfor approval. As per the allegations, this was only to protect illegalappointment of the son of the President of petitioner No.1. It is thecase that out of ten employees working in the school, four were fromthe family of the President of petitioner No.1. In the academic year2015-2016, the appellant insisted for payment of salary. It is the casethat because of this insistence, the Management did not allow theappellant to sign muster roll. It is thus, the case of the appellant thatthis amount to otherwise termination. He thus, approached thelearned School Tribunal with prayer to set aside the otherwisetermination and for reinstatement with consequential benefits. 5Writ Petition 10691 of 2017.odt3It is the case of the Management and the school that infact the appellant’s case was that he was terminated in the year 2008and at the same time he claimed to have been terminated in the year2015. It is specific stand that in fact there was no termination of theappellant. However, his services were not approved by the EducationOfficer and therefore, he himself abandoned the services andremained absent from the school. The Management thus, challengedthe maintainability of the appeal. It is also a case of the Managementthat the appellant was not appointed by following due procedure oflaw as contemplated under Section 5 of the MEPS Act. It is furthercase that there was a backlog of vacancies of the Scheduled Castecandidates in the school and it is for this reason, no approval wasgranted by the Education Officer. The Management thus, prayed fordismissal of the appeal. 4The learned School Tribunal, after hearing and after goingthrough the evidence / documents on record, held that the appellantwas appointed against clear, vacant and permanent post by followingdue procedure of law. He was a permanent employee, in view ofSection 5(2) of the MEPS Act. By holding these two points in favourof the appellant, the learned School Tribunal allowed the appeal. 6Writ Petition 10691 of 2017.odt5Being aggrieved by the said judgment, the petitioners arebefore this Court.6Mr. S. B. Deshpande, learned Senior Advocate for thepetitioners vehemently argued that in the present case there is noapproval by the Education Officer and thus, there is no question of theappellant being permanent employee of the school. Though theDeputy Director of Education sent communication dated 10thDecember, 2010 clarifying that the qualification of the appellant issufficient for appointment as a teacher, however, there was furthercommunication dated 18th February, 2011 by the Education Officer tothe Headmaster that in the case of appellant there are certaindeficiencies in the proposal. It was directed to send a proposal dulycompleted in all respects. There is one more communication dated21st April, 2011, by which the Education Officer communicated thatthere is no compliance in respect of the proposal of the appellant. Itwas directed to make compliance. It is further stated that if nocompliance is done, the recognition of the school will be withdrawn.He, thus, submits that the services of the appellant were neverapproved by the Education Officer. 7Writ Petition 10691 of 2017.odt7The learned Senior Advocate further submits that in theappeal, the appellant had made prayer only to set aside the impugnedtermination. However, there was no prayer for reinstatement andback-wages. Still the Tribunal has granted both these reliefs. Theobservations of the School Tribunal about the back-wages are notproper. He further submits that while communicating about thequalification, the Deputy Director of Education has communicated thata degree of B.Com., B.A., B.Ed. is requisite qualification. However, inthe case of appellant, it was a degree course of only one year and thesame is not recognized as qualification. The appellant hadabandoned services in 2009 and till 2015, he did not sign the muster.Just to bring the appeal within limitation, a vague statement is madeby the appellant that he was terminated in 2015. He submits that it isa case of the appellant himself that he signed the muster roll till 30thDecember, 2009 and was not allowed to sign the muster sinceJanuary 2010, though he was discharging duties. He submits that thiscannot be accepted. He submits that when the post was reserved forthe candidate belonging to Scheduled Caste as per the roster, thesame was not provided. In view of Section 5 of the MEPS Act and theRule 9 of the MEPS Rules, it was necessary for the appellant to showthat due procedure was followed while appointing him. He, thus, 8Writ Petition 10691 of 2017.odtsubmits that the judgment and order of the Tribunal is illegal andagainst the record. He prays for allowing the writ petition by quashingand setting aside the impugned judgment and order. 8In support of his submissions, the learned SeniorAdvocate for the petitioners relied upon the judgment in the case ofVilas Laxman Gavai Vs. Dnyandeo Uttamrao Dhandar and others,reported in, 2017(6) Mh.L.J. 812. Another judgment he relied upon isthe judgment delivered by this High Court, Bench at Aurangabad inWrit Petition No.10710 of 2022 (Swati d/o Shahajirao Chate Vs.The State of Maharashtra and others). 9Mr. Dhananjay Mane, the learned counsel for respondentNo.1 / appellant submits that the appellant has obtained degree fromthe Open University by undergoing one-year course. It is for thisreason a clarification was sought. The Deputy Director clarified thatthe degree of B.Com., B.A., B.Ed. is requisite qualification for the postof Teacher. In the advertisement, no reservation was shown. TheManagement had sent the proposal for approval. Approval was alsogranted, subject to Management making the compliance of thedeficiencies. However, it is the failure of the Management that noproper proposal was sent. Though as per the roster, a seat was 9Writ Petition 10691 of 2017.odtreserved initially for the candidate belonging to Scheduled Caste,however, it lapsed as no candidate was available. In theadvertisement itself, no reservation was shown by the Management.He submits that for the fault of the Management, the appellant cannotbe punished. He submits that by way of amendment, prayer ofreinstatement and back-wages were introduced. He further submitsthat in the reply of the Management, there was no averment madeabout the qualification. The theory of the Management that theappellant had abandoned the job, is not supported by any document.It is not on record as to what steps the Management has taken whenthe appellant abandoned the duties. No specific date is mentioned asto on which date the appellant abandoned the job. He submits thatthe learned Tribunal has rightly considered all these aspects and hasrightly passed the order. He prays for dismissal of the writ petition. 10In rebuttal, the learned Senior Advocate for the petitionerssubmits that theory of the appellant that he was working till 2015, isnot properly considered by the Tribunal. There is no discussion aboutthe stand taken by the Management that it is the appellant, who, onhis own, abandoned the school and as such there is no question oftermination. 10Writ Petition 10691 of 2017.odt11Mr. K. B. Jadhavar, learned AGP, appearing on behalf ofthe Education Officer. It is the stand of the Education Officer thatthough the appellant was appointed with effect from 1st August, 2001,however till date there is no complete proposal sent by theManagement for approval. It is for this reason, there is no approvalgranted to the appointment of the appellant. In view of the same, it isthe responsibility of the Management to pay the salary to theappellant. The Education Officer has also received a proposal tochallenge the order passed by the learned School Tribunal to thatextent. Thus, the submission is that if at all the salary is to be paid, itis the duty of the Management to pay the salary to the appellant /respondent No.1. 12In the present case the question is as to whether thejudgment and order passed by the learned School Tribunal is legaland proper. It also needs to be considered as to whether theappointment of the appellant / respondent No.1 can be said to be anappointment made by following due process of law and whether hecan be treated to be a regularly appointed teacher. 13From the above stated facts, it is clear that the service of 11Writ Petition 10691 of 2017.odtthe appellant was never approved by the Education Officer, as therewere certain deficiencies in the proposal sent by the petitioners /Management. It is also further clear that no deficiencies were cured.Another question is as to whether the degree of the appellant wasrecognized or it is requisite qualification for the post of AssistantTeacher. Admittedly, the degree course of the appellant is from OpenUniversity and the course was of duration of one year only. There isnothing on record to show that the degree obtained by the appellantby completing one year course is recognized. The Education Officerdid not grant the approval on this point as well. 14The further question as to whether the appellant’s storycan be believed that since 2009, though he worked with theManagement, he was not allowed to sign till 2015. It needs to be keptin mind that the story of the appellant appears to be doubtful. There isnothing on record to show that the appellant, at any point of time,made any grievance to any authority or even to the Management thathe was not allowed to sign the muster roll. It is not the case of theappellant that he has raised any grievance that he was not allowed tosign the muster roll. This Court finds sufficient force in the argumentof the Management that the appellant himself abandoned the duty.Thus, there was no cause of action to file appeal in the year 2015. It 12Writ Petition 10691 of 2017.odtis only to bring the appeal within limitation, the imaginary date isgiven. 15It is clear from record that the appellant has obtained adegree from an open university having course duration of one yearonly. It was not a specific query that as to whether one year degreecourse is a requisite qualification. It was necessary for the appellantto show that the said degree course is equivalent to the regulardegree course. Merely because the Deputy Director has answeredthat the degree is recognized, cannot bind the statute when thestatute requires a degree of three years course. This was preciselythe reason as to why the Education Officer did not grant approval.The School Tribunal has failed to consider this material aspect andhas allowed the appeal. It is also further clear that the post wasreserved for Scheduled Caste candidate and no general categorycandidate could have been appointed in his place. This submissionalso finds some force. 16So far as the submissions of the appellant are concerned,this Court does not find any force. The very submission that theManagement did not forward the proposal in proper manner, itselfshows that the proposal was not approved. Consequentially, the
Decision
13Writ Petition 10691 of 2017.odtappointment of the appellant was also not approved. Once it hascome on record that there was no approval granted to theappointment, still the Tribunal has failed to appreciate this fact. Thereis also no question of deemed confirmation when there is no approvalby the Education Officer. For all these reasons, this Court finds thatthe petitioners have made out a case to allow the petition. The writpetition therefore, deserves to be allowed. Hence, the following orderis passed:-O R D E RI.The writ petition is allowed.II.The impugned judgment and order dated 17th April,2017 passed by the learned Presiding Officer, SchoolTribunal, Aurangabad Division, Aurangabad in AppealNo.5 of 2016, is hereby quashed and set aside.III.In view of disposal of the writ petition, pending civilapplications also stand disposed of. [ KISHORE C. SANT, J ] nga