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wp4054.01.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.4054 of 2001
Suresh s/o Baliram Hukare,
Aged 36 years,
Occupation - Service,
Resident of near ST Depot,
Sakoli, Tq. Sakoli,
District Bhandara. ... Petitioner
Versus
1. The State of Maharashtra,
through its Secretary,
Department of Education,
Mantralaya, Mumbai-32.
*2. Smt. Anandbai Education
Society, Isapur, Post Gurdha,
Tq. Lakhandur,
Dist. Bhandara, through its
Vice-President Devman Kapgate,
Aged 70 years,
Occupation - Retired,
Resident of behind Forest Office,
Sakoli, District Bhandara.
3. The Principal, Kalabai Kanya Junior
College, Sakoli, District Bhandara.
4. The Deputy Director of Education,
Nagpur Division, Nagpur.
*5. Chandrabhan Shivaji Isapure,
Aged 70 years,
Occupation - Retired,
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wp4054.01.odt
Secretary, Smt. Anandibai
Education Society,
Isapur, Post Gurdha,
Tahsil Lakhandur,
District Bhandara.
(* Amended as per Court's order
dated 4-4-2016). ... Respondents
Shri B.M. Kharkate, Advocate for Petitioner.
Ms Geeta Tiwari, Assistant Government Pleader for Respondent
Nos.1 & 4.
Shri Rohit Joshi, Advocate for Respondent No.5.
Coram : R.K. Deshpande & Mrs. Swapna Joshi, JJ.
th Dated : 13 June, 2017 Oral Judgment (Per R.K. Deshpande, J.) :
1. The approval to the appointment of the petitioner as a Lecturer in Junior College was rejected by the respondent No.4- Deputy Director of Education on 22-8-2000 on the ground that the Management has failed to fill in the backlog of reserved category candidates. The petitioner has challenged the said communication in this petition and seeks a direction to the Deputy Director of Education to grant approval to his appointment and consequently to release the salary as per the ::: Uploaded on - 15/06/2017 ::: Downloaded on - 17/06/2017 00:43:34 ::: 3 wp4054.01.odt scale of pay on which he was appointed. Shri Kharkhate, the learned counsel appearing for the petitioner, submits that the petitioner has left the job of a Lecturer in Junior College run by the respondent Nos.2 and 3 with effect from 25-10-2004. The claim in this petition is for payment of arrears of salary from 1-7-1994 till the filing of the petition on 9-11-2001.
2. It is the stand taken by the respondent No.4-Deputy Director of Education that the petitioner was working in the College run by the respondent Nos.2 and 3 since the year 1991-92. Up to the academic session 1992-93, the appointment of the petitioner as a Lecturer in Junior College on clock hour basis was also approved. The College being run on grant-in-aid basis, the petitioner was also paid the salary from the State exchequer. It is also the stand taken by the Deputy Director of Education that during the academic session 1993-94, the Management made efforts to fill in the backlog, but the candidates from the backward class category were not available. The petitioner was, therefore, appointed for the academic session ::: Uploaded on - 15/06/2017 ::: Downloaded on - 17/06/2017 00:43:34 ::: 4 wp4054.01.odt 1993-94 purely on temporary basis and his appointment was approved for that session only. It is also the stand taken that during 1994-95 same position continued and, therefore, the approval to the appointment of the petitioner was rejected. Consequently, the salary grant for payment of salary to the petitioner was not released from the State exchequer.
3. There is no dispute that the petitioner was appointed as a Lecturer in Junior College with effect from 1-7-1994 on temporary basis and he was continued on year-to-year basis till he left the job on 25-10-2004. It is also not in dispute that the petitioner has performed the job of teaching but he was not paid the salary for this entire period from 1-7-1994 to 25-10-2004. If it is the case of the Deputy Director of Education that the Management made efforts to fill in the backlog by issuing an advertisement in the newspaper and inviting the applications, but such candidates were not available, then in terms of Rule 9(9)(a) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, the post can be filled in temporarily or on ::: Uploaded on - 15/06/2017 ::: Downloaded on - 17/06/2017 00:43:34 ::: 5 wp4054.01.odt year-to-year basis by a candidate not belonging to such backward class till the backlog is filled in. The Deputy Director of Education having accepted in the impugned communication that the workload was available for appointment to the post, then he should have considered the question of grant of approval on year-to-year basis only, so that the petitioner could have received the salary for performing his job. This has not been done and, therefore, the Deputy Director of Education will have to be directed to grant approval to the appointment of the petitioner on year-to-year basis with effect from 1-7-1994 till filing of this petition on 9-11-2001.
4. In the decision of the Apex Court in Andi Mukta Sadguru Shree Mnuktajee Vandas Swami Suvarna Jayani Mahotsav Smarak Trust and others v. V.R. Rudani and others, reported in (1989) 2 SCC 691, it is held that the writ petition filed by the retrenched teachers of the private aided College (a Public Trust), affiliated to University, seeking writ of mandamus for compelling the College Management to pay them terminal benefits and ::: Uploaded on - 15/06/2017 ::: Downloaded on - 17/06/2017 00:43:34 ::: 6 wp4054.01.odt arrears of salary due, is maintainable. In the present case, the direction is required to be issued to the Deputy Director of Education for granting approval and consequently for payment of arrears of salary. We do not find any impediment in issuing such mandamus. However, the question is whether the petitioner would be entitled to claim the arrears of salary for a period more than past three years from the date of filing of this petition on 9-11-2001. In our view, such a claim being time-barred, cannot be granted. The petitioner would, therefore, be entitled to arrears of salary for a period of three years immediately preceding the date of 9-11-2001, when this petition was filed. Rest of the claim is rejected.
5. In the result, the petition is partly allowed. The order dated 22-8-2001 passed by the respondent No.4-Deputy Director of Education, Nagpur, refusing to grant approval to the appointment of the petitioner, is hereby quashed and set aside. The direction is given to grant such approval with effect from 1-7-1994, but the arrears of salary payable to the petitioner shall ::: Uploaded on - 15/06/2017 ::: Downloaded on - 17/06/2017 00:43:34 ::: 7 wp4054.01.odt only be for the period immediately preceding three years from the date of 9-11-2001. This entire exercise be done within a period of six months, including forwarding salary bills by the Management to the Deputy Director of Education.
6. Rule is made absolute in above terms. No order as to costs.
JUDGE JUDGE
Lanjewar
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