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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.564/2016
1. Late Indira Gandhi Shikshan Sanstha
Shivaji Nagar, Chandur Rly., Distt.
Amravati, through it's Secretary.
2. The Head Master,
Late Indira Gandhi Shikshan Sanstha
Shivaji Nagar, Chandur Rly.,
Distt. Amravati.
3. Shri Pralhad Shankarrao Umap,
C/o Late Indira Gandhi Kannya Shala,
Amla Vishveshwar, Tq. Chandur Rly.,
Distt. Amravati. ..Petitioners.
..Vs..
1. Ku. Sheela Bhabhutaing Thakur,
aged about 29 Yrs., Occu. Service,
At Po. Mozri, Tq. Teosa, Distt. Amravati.
2. Education Officer (Secondary),
Zilla Parishad, Distt. Amravati. ..Respondents.
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Shri Anjan De, Advocate for the petitioners.
Shri P.S. Patil, Advocate for respondent No.1.
Shri Bhagwan M. Lonare, A.G.P. for respondent No.2.
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CORAM : Z.A.HAQ, J.
DATE : 18.4.2017. ORAL JUDGMENT
1. Heard Shri Anjan De, Advocate for the petitioners, Shri P.S. Patil, Advocate for respondent No.1 and Shri Bhagwan M. Lonare, A.G.P. for ::: Uploaded on - 25/04/2017 ::: Downloaded on - 25/04/2017 23:56:56 ::: 2 wp564.16 respondent No.2.
2. Rule. Rule made returnable forthwith.
3. The petitioners / employer and the employee holding the post for which the respondent No.1 has made claim have challenged the order passed by the School Tribunal by which the appeal filed by the respondent No.1 is allowed and the Management is directed to reinstate the respondent No.1 considering her appointment on probation for the period of 3 years. The Tribunal has rejected the claim of the respondent No.1 for back-wages.
4. The respondent No.1 was appointed as Physical Training Instructor on 28th June, 1993 for the academic session 1993 - 1994. Again by an order dated 22nd June, 1994 the respondent No.1 was appointed as Physical Training Instructor from 28th June, 1994 till 5th May, 1995. According to the Management by the notice dated 3rd April, 1995 given to the respondent No.1 and other employees their services were discontinued from the end of the academic session 1994 - 1995. The respondent No.1 denies this and according to her she was not served with any such notice.
The respondent No.1 filed appeal before the Tribunal which was allowed by the order dated 9th November, 2005. This order was challenged by the Management before this Court in Writ Petition No.4009/2006. Before this ::: Uploaded on - 25/04/2017 ::: Downloaded on - 25/04/2017 23:56:56 ::: 3 wp564.16 Court, the Management urged that the services of the respondent No.1 were discontinued as her work was not found to be satisfactory. By the judgment dated 22nd February, 2011 this Court allowed the writ petition filed by the Management and remitted the matter to the Tribunal for deciding the appeal filed by the respondent No.1 afresh, with observations that the contention of the Management that the services of the respondent No.1 were discontinued as her work was not found to be satisfactory shall be examined. After remand, the Tribunal has partly allowed the appeal filed by the respondent No.1 by the impugned order.
5. The submission on behalf of the respondent No.1 is that the post in which she was appointed was a permanent post as admittedly the petitioner No.3 came to be appointed in the same post on 1 st July, 1995 and, therefore, it has to be treated that the appointment of the respondent No.1 was on probation and considering the defence of the Management that the services of the respondent No.1 were discontinued from the end of the academic session 1994 - 1995 as her work was not found to be satisfactory and the Management having failed to substantiate this defence, the respondent No.1 is entitled for reinstatement. It is argued that the School Tribunal has properly considered all these aspects and the impugned order does not require any interference by this Court in the extraordinary jurisdiction.
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6. Admittedly, when the respondent No.1 was appointed, the post was not advertised. The respondent No.1 has not placed any material on record to show that her appointment was made after following the prescribed procedure as per Section 5 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short "Act of 1977"). The Management advertised several posts, including the post in which the respondent No.1 had earlier worked, pursuant to which the petitioner No.3 applied, was selected and appointed and the Education Officer has granted approval to his appointment. The respondent No.1 had not applied pursuant to the advertisement. The respondent No.1 filed appeal only after the petitioner No.3 joined his duties in the school. Though the Management has not been able to substantiate that the work of respondent No.1 was not found to be satisfactory and, therefore, her services were discontinued from the end of the academic session 1994 - 1995, as the respondent No.1 has not been able to show that her appointment was made after following the prescribed procedure, in my view, she is not entitled for reinstatement. Considering the facts of the case, the Tribunal should have exercised jurisdiction under Section 11(2)(e) of the Act of 1977 and granted compensation to the respondent No.1.
In view of the above, the following order is passed:
(i) The order passed by the School Tribunal is modified.
(ii) It is held that instead of reinstatement, the respondent No.1 is entitled for compensation as per Section 11(2)(e) of the Act of 1977. ::: Uploaded on - 25/04/2017 ::: Downloaded on - 25/04/2017 23:56:56 :::
5 wp564.16 (iii) The petitioner No.1 - Management shall pay Rs.1,00,000/- (Rs. One
Lakh Only) to the respondent No.1 till 30th June, 2017 by demand draft.
(iv) If the amount is not paid, the respondent No.1 - Management shall pay interest on the amount of Rs.1,00,000/- (Rs. One Lakh Only) at the rate of 9% per annum, the interest being chargeable from 1 st July, 1995 till the amount is paid to the respondent No.1.
The petition is disposed in the above terms.
In the circumstances, the parties to bear their own costs.
JUDGE Tambaskar.
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