High Court · 2024

Legal Reasoning

(1) wp-9804-2022.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.9804 OF 20221.The President,Bahiram Dev Education Society, Ghodade, Taluka Sakri, District Dhule.2.The Head Master,Mahatma Jyotiba Phule Madhyamik Va Ucch-Madhyamik Vidyalaya, Ghodade, Tal. Sakri, Dist. Dhule..PetitionersVersus1.Smt. Rajshri Dadaji Shirwadkar,Age 37 years, Occu. Nil, R/o 182-34, Raje Park 2, At Post Pimpalner, Tal. Sakri, District Dhule.2.The Education Officer (Secondary),Zilla Parishad, Dhule...Respondents....Mr. S. S. Deshmukh, Advocate for Petitioners.Mr. A. S. Sawant, Advocate for Respondent No.1.Mr. V. S. Badkh, AGP for Respondent No.2.… CORAM : S. G. CHAPALGAONKAR, J. DATED : 20th JULY 2024.JUDGMENT:- 1.Rule. Rule made returnable forthwith. By the consent of theparties, matter is taken up for final hearing at the stage ofadmission.2.The petitioners impugn the order dated 05.08.2022 passed bythe School Tribunal, Nashik in Appeal No.14/2020 under Section 9of the Maharashtra Employees of Private Schools (Conditions ofService) Regulation Act, 1977 (for short ‘MEPS Act’) directingManagement to reinstate respondent no.1 on the same postalongwith full back-wages and continuity in service. (2) wp-9804-2022.odt3.On 14.06.2007 respondent no.1 was appointed as ShikshanSevak at petitioner no.2-School by following due process of law.Her appointment was approved on 21.12.2009 by the EducationOfficer. After completing the period of Shikshan Sevak, herservices were confirmed and approved by the Education Officer asAssistant Teacher. During service period, respondent no.1acquired B.Ed. qualification. The management sent proposal forgrant of B.Ed. scale to the petitioner. Accordingly, on 01.07.2014her name is inserted in the seniority list maintained as perSchedule ‘F’. The respondent no.1 rendered continuousunblemished service of about 13 years.4.The President of petitioner no.1-Management is father-in-lawof respondent no.1. There was matrimonial discord betweenrespondent no.1 and her husband. Some criminal cases were filed.Exacerbated by such litigation, the President of Institution i.e.father-in-law of respondent no.1, issued show cause notices to herincorporating false imputations and consequently, issuedtermination order dated 15.06.2020 on the basis of Resolutiondated 01.06.2020. The respondent no.1 approached SchoolTribunal under Section 9 of the MEPS Act assailing terminationbeing illegal and capricious. She pleaded that she has beenappointed by following due process of law. Her services wereapproved by the competent authority. She was a permanentemployee. She has been terminated without enquiry understigmatic order. As such, sought to set aside the order withconsequential relief of reinstatement. The petitioner no.1-Management filed written statement and denied the materialaverments in Appeal Memo and pleaded that respondent no.1 wasserved with show cause notices dated 03.08.2019, 09.09.2019 and13.03.2020 and consequently, terminated her services by givingthree months salary. The petitioners have candidly admitted that (3) wp-9804-2022.odtthe termination is without enquiry prescribed under Rules 36 and37 of the MEPS Rules. The School Tribunal after considering therival contentions, allowed the Appeal vide order dated 05.08.2022and directed reinstatement of respondent no.1 alongwith full back-wages. 5.Mr. Deshmukh, learned Advocate appearing for thepetitioners vehemently submits that respondent no.1 could notplace on record her appointment order. There is nothing todemonstrate that proposal seeking approval to the appointment ofpetitioner was forwarded by Management. The burden to provethat she was appointed by following due process of law has notbeen discharged by her. Due to misconduct of respondent no.1, thestudents were suffering. She was a elected member of ZillaParishad and always pressurized Headmaster. She was notserious in performing her duties as teacher. Consequently, showcause notices were issued to her and finally Resolution was passedby Management to terminate her services. Consequently,termination order is issued. To buttress his submissions he reliesupon the judgment of this Court in Writ Petition No.1019/19991in case of Rayat Shikshan Sanstha Vs. Yeshwant DattataryaShinde dated 25.06.2009.6.Mr. Savant, learned Advocate appearing for respondent no.1justifies the impugned order. He would submit that respondentno.1 being permanent employee could not have been terminatedwithout following prescribed procedure contemplated for inflictingmajor penalty. In present case, admittedly respondent no.1 hasbeen terminated without following procedure prescribed underRules 36 and 37 of the MEPS Rules. Therefore, no fault can befound in the order passed the Tribunal. To buttress hissubmissions he relies upon the judgments of this Court in case of (4) wp-9804-2022.odtTrimurti Balak Mandir Shikshan Sanstha, Aurangabad Vs.Vithabai Bhikan desale and Another and Others1 andBalasaheb Ramchandra Burke and Others Vs. President,Bahujan Samaj Prabodhan Shikshan Sanstha and Others2. 7.Having considered submissions advanced on behalf of thelearned Advocates appearing for respective parties and on perusalof documents tendered before this Court, apparently respondentno.1 possessed requisite qualification for appointment as ShikshanSevak as on the date of her appointment. Her appointment wasduly approved by the Education Officer on 21.12.2009 and aftercompleting period of Shikshan Sevak, she has been confirmed asAssistant Teacher and Education Officer approved her services. Inthe year 2014, respondent no.1 acquired higher qualification ofB.Ed., which has been entered into the record and she was givenappropriate placement in the seniority as per Schedule ‘F’. In thisbackground, it is difficult to accept the contentions of thepetitioners that she was not appointed by following due process oflaw. Only because respondent no.1 could not place on record theappointment order, no adverse inference can be drawn.Pertinently, there are three consecutive approvals to theappointment of respondent no.1 initially as Shikshan Sevak andlastly for grant of pay scale based on B.Ed. qualification.Apparently on proposals of the Management, such approvals havebeen granted. The respondent no.1 has rendered service of morethan 13 years and there is nothing on record to demonstrate thatthe legality of her appointment was ever questioned byManagement during this long tenure.8.It is apparent that respondent no.1 is daughter-in-law of thePresident of petitioner no.1-Institution. The matrimonial discord12017 (1) Mh.L.J. 90.22016 (3) Bom.C.R. 197. (5) wp-9804-2022.odtbetween respondent no.1 and her husband is writ large. Theallegations and counter allegations are made against each other.All such disputes are subjudice before judicial Forum. It is evidentthat respondent no.1 was served with notice for divorce on16.01.2020. She replied said notice on 03.02.2020 and thereafter,management came in action to issue notices against respondentno.1 with certain allegations. There is direct nexus betweenmatrimonial litigation and action resorted against respondent no.1.This Court has no hesitation to observe that family dispute is givencolour of service litigation. 9.The School Tribunal has thoroughly examined the legality ofrespondent no.1’s appointment and recorded finding of facts thather appointment was legal, proper and against clear vacant post.She was permanent employee. In case of stigmatic terminationunder Section 33, it could have been preceded by enquiry ascontemplated in MEPS Rules. Section 4(6) of the MEPS Actprescribes that no employee of a private school shall be suspended,dismissed or removed, except in accordance with the provisions ofthe Act and Rules. Therefore, if respondent no.1 was a permanentemployee, the major penalty could not have been inflicted withoutfollowing prescribed procedure in terms of Rules. In thiscircumstance, no fault can be found in the view taken by SchoolTribunal. Consequently, Writ Petition stands dismissed.10.Rule is discharged. (S. G. CHAPALGAONKAR) JUDGE Devendra/July-2024