1 wp3338.2015.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No. 3338/2015
1] Ku. Mamta Roopchand Patle,
Aged about 44 years, Occ. Nil
R/o Station Road, Tirora,
Tal. Tirora, Dist. Gondia ..... PETITIONER
...V E R S U S...
1] Gyan Prasarak Shikshak Sansthan
Through its Secretary,
Anup Govindrao Wasnik,
G-2, Asmita Apartment,
Ambedkar Road, Khar,
Mumbai West-52,
2] Head Master,
Indira Krishi High School, Thanegaon,
Post Thanegaon, Tal. Tirora,
Dist. Gondia
3] Educating Officer (Secondary)
Zilla Parishad, Gondia,
Dist. Gondia ... RESPONDENTS
=====================================
Shri M.V. Mohokar, Advocate for the petitioner
Shri A.M. Dixit, Advocate for the respondent nos. 1 and 2
Miss T.H. Khan, AGP for the respondent no. 3
=====================================
CORAM:- Z.A. HAQ,J.
DATED :- 11 December, 2017
th
ORAL JUDGMENT :-
Heard.
Rule. Rule made returnable forthwith.
::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 00:42:34 :::
2 wp3338.2015.odt
2] The petitioner-employee was appointed as Physical
Education Teacher in the school administered by the respondent no. 1-Society, by the appointment order dated 23/06/1996 (placed on record as Annexure-II at page 32 of the paperbook). Clause-II of this appointment order states that the appointment of the petitioner was temporary from 26/06/1996 till the end of that academic session. It is undisputed that this appointment of the petitioner was made without issuing any advertisement and without following the procedure prescribed by Section 5 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter referred as "the Act of 1977"), rules framed under it and the Government Resolutions and Circulars. It is undisputed that without issuing any written order, the petitioner was continued in service in the academic sessions 1997-1998 and 1998-1999, the Education Officer granted approval to the appointment of six employees working in the school administered by the respondent no. 1-Society by communication dated 31/03/1998 and this communication shows that the appointment of the petitioner as Physical Education Teacher was approved from 23/06/1998 for two years. ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 00:42:34 :::
3 wp3338.2015.odt 3] The petitioner filed appeal before the School Tribunal
under Section 9 of the Act of 1977 making grievance that the management had illegally obtained her resignation letter and on that basis, removed her from service w.e.f. 15/07/1999 and 03/08/1999. The petitioner prayed that the termination orders be quashed and the management be directed to reinstate the petitioner with consequential benefits.
The management and the School opposed the claim of the petitioner.
The School Tribunal considered the appeal filed by the petitioner on merits and by the impugned order, dismissed it holding that the petitioner has failed to show that her appointment was made after following the procedure as per Section 5 of the Act of 1977.
4] The advocate for the petitioner has submitted that the Tribunal has committed an error in dismissing the appeal filed by the petitioner on the ground that the petitioner has not pointed out that her appointment was made as per Section 5 of the Act of 1977. It is submitted that the legality and the validity of the appointment of the petitioner was not in issue before the Tribunal ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 00:42:34 ::: 4 wp3338.2015.odt and the only issue which the Tribunal was required to advert to was whether the removal of the petitioner from service on the basis of alleged resignation letters was proper. Reliance is placed on the communication dated 31/03/1998 by which the Education Officer granted approval to the appointment of the petitioner from 23/06/1998 for two years and it is argued that even the Education Officer had not raised the issue that the appointment of the petitioner was illegal and without following the procedure as laid down by Section 5 of the Act of 1977.
5] After examining the matter and considering the submissions made by the learned advocates appearing for the respective parties, I find that the conclusions of the Tribunal that the petitioner is not entitled for relief of reinstatement and consequential benefits cannot be faulted with. The appointment order dated 23/06/1996 shows that her appointment was temporary from 26/06/1996 till the end of the academic session. It is undisputed that the appointment of the petitioner was made without following the procedure laid down under Section 5 of the Act of 1977, rules framed under it and the Government Resolutions and Circulars. It is admitted that subsequently any ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 00:42:34 ::: 5 wp3338.2015.odt appointment order is not given to the petitioner and she was continued in the academic sessions 1997-1998 and 1998-1999 as per the desire of the management. The Education Officer has not pointed out, how and on what basis approval was granted to the appointment of the petitioner from 23/06/1998 for two years. The learned advocate for the petitioner has submitted that in 1998 grants from State exchequer were sanctioned to the School and therefore the Headmaster of the School had sent proposal to the Education Officer in 1998 seeking approval to the appointment of the employees working in the school. Even if the grants were sanctioned to the school from the academic session 1998-1999, the Education Officer could not have granted approval to the appointment of the petitioner without verifying that her appointment was made by following the prescribed procedure. In these facts, the communication dated 31/03/1998 granting approval to the appointment of the petitioner for two years does not confer any right in favour of the petitioner and she cannot claim that she had acquired the status of confirmed employee and is entitled for reinstatement with consequential benefits.
6] Though I concur with the conclusions of the Tribunal
::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 00:42:34 :::
6 wp3338.2015.odt
that the petitioner is not entitled for reinstatement with consequential benefits, I find that the manner in which the petitioner is removed from service was not proper and the management has failed to substantiate its claim that the petitioner had submitted the resignation letters. The management has also failed to show why the petitioner was continued after the academic session 1996-1997, though her appointment was till the end of 1996-1997 session. In these facts, I find that this is a fit case to exercise jurisdiction under Section 11 (2) (e) of the Act of 1977. In my view, the respondent no. 1-management should pay compensation to the petitioner as per Section 11 (2) (e) of the Act of 1977. Similarly, as the respondent no. 3-Education Officer has failed to assist the Tribunal and this Court by filing reply and explaining the circumstances in which approval was granted to the appointment of the petitioner by the communication dated 31/03/1998, the Education Officer is liable to pay costs.
Hence, the following order is passed:-
O R D E R 1] In lieu of reinstatement and consequential benefits, the respondent no. 1-Management shall pay Rs. 1,00,000/- to the petitioner by demand draft till 15/03/2018. If the respondent no. ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 00:42:34 :::
7 wp3338.2015.odt 1-Management fails to pay amount of Rs. 1,00,000/- till 15/03/2018, it will be liable to pay the interest at the rate of 9% per annum on the amount of Rs. 1,00,000/-, the interest being chargeable from 01/11/2014 i.e. after the decision of the appeal by the Tribunal till the amount is paid to the petitioner. 2] The respondent no. 3-Education Officer shall pay an amount of Rs. 20,000/- to the petitioner towards costs. This amount of costs shall be paid till 15/03/2018.
The copy of this judgment be sent to the Deputy Director of Education, Nagpur Division, Nagpur and if he feels it necessary, he may cause an inquiry against the concerned Education Officer who had issued the communication dated 31/03/1998 and recover the amount from the concerned Education Officer if he is found guilty.
The order passed by the School Tribunal is modified in the above terms.
The writ petition is disposed accordingly.
JUDGE A n s a r i ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 00:42:34 :::