Shri Gajanan Maharaj Shikshan ... vs Shri Milind Madhukarrao Labade
2009 Latest Caselaw 98 Bom

                                            1

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY:
                             NAGPUR BENCH: NAGPUR




                                                                                    
                         WRIT PETITION NO.2924 OF 2002
PETITIONERS:




                                                            
      Shri Gajanan Maharaj Shikshan Sanstha, Jaistambh Chowk, Amravati,
      through the Headmaster, & Secretary School Committee, Shri Gajanan




                                                           
      Maharaj High School, Amravati.
                                       VERSUS
RESPONDENTS:




                                               
1]    Shri Milind Madhukarrao Labade, resident of Plot no.8,Shriram Nagar, behind
      Rathi Nagar, Amravati.     
2]    The Education Officer ( Secondary ), Zilla Parishad, Amravati.
                                
3]    The Presiding Officer, School Tribunal, Amravati.
===============================================================
Shri S.P. Dharmadhikari, Senior Advocate with Shri D.V. Chauhan for the petitioner
             

Shri S.B. Ahirkar, A.G.P. for respondents no.2 & 3.
          



===============================================================
CORAM: SMT. VASANTI A. NAIK, J.

DATE: DECEMBER 15, 2009

ORAL JUDGMENT

By this petition, the petitioner impugns the judgment passed by the Presiding

Officer, School Tribunal, Amravati on 21.3.2002 allowing the appeal filed by the

respondent no.1 and directing the petitioner to pay back wages to respondent no.1 from

28.6.1993 till 14.7.1997 within a period of three months.

2] Few facts giving rise to the petition are stated thus - The respondent no.1 was

appointed as an Assistant Teacher by the petitioner in the year 1991 for the academic

session 1991-92. Thereafter, by a subsequent appointment order the respondent no.1 was

continued as Assistant Teacher for the academic session 1992-93. The Education Officer

refused to grant approval to the appointment of the respondent no.1 by an order dated

3.6.1993. The services of the respondent no.1 were therefore, terminated by the

petitioner. It was the case of the petitioner that the respondent no.1 was appointed

against the vacancy which was created by the removal of one Mr. Gadhavale who had

filed an appeal against his dismissal before the School Tribunal.

3] The respondent no.1 challenged the order of his termination, dated 26.10.1993

before the Presiding Officer, School Tribunal, Amravati. The appeal was registered as

Appeal No.157/1993 -A. During the pendency of the appeal, a pursis was filed by

respondent no.1 before the Tribunal on 15.3.1999. It was stated in the pursis that the

respondent no.1 was appointed as an Assistant Teacher in the Zilla Parishad w.e.f.

14.7.1997, and hence he was not pressing the relief of reinstatement and was praying

only for the back wages. The Tribunal decided the appeal filed by the respondent no.1

and directed the reinstatement of the respondent no.1 with continuity of service and back

wags. A Writ petition was preferred by the petitioner before this court and this court by

an order dated 28.8.2000 remanded the matter to the School Tribunal by allowing Writ

Petition No.6123/2000 with a direction to the Tribunal to examine the issue of back

wages afresh and record a clear finding as to the entitlement of the respondent no.1 to

the same.

4] After the matter was remanded to the Tribunal, a preliminary objection was raised

by the petitioner before the School Tribunal. It was stated in the preliminary objection

that the Education Officer had refused to grant approval to the appointment of the

respondent no.1 and in the meanwhile the appeal filed by Mr. Gadhavale, in whose place

the respondent no.1 was appointed, was allowed by the Tribunal and Mr. Gadhavale had

joined as an Assistant Teacher in the School. It was the case of the petitioner that the

respondent no.1 could not have claimed back wages for the period during which Mr.

Gadhavale had worked as an Assistant Teacher. Apart from the aforesaid objectin, an

objection was raised by the petitioner to the tenability of the appeal, as according to the

petitioner, the appeal was not tenable only for the purpose of recovery of arrears of

salary as the respondent no.1 had given up his claim for reinstatement. It appears that the

Presiding Officer, School Tribunal, Amravati did not decide the aforesaid preliminary

objections and allowed the appeal filed by the respondent no.1 directing the petitioner to

pay full back wages to the respondent no.1 from 28.6.1993 till 14.7.1997 on the ground

that the petitioners had not adduced any evidence to show that the respondent no.1 was

gainfully employed and was not entitled to back wages.

5] Shri S.P.Dharmadhikari, the learned Senior Counsel appearing on behalf of the

petitioner submitted that the School Tribunal committed serious error in not considering

the objections raised by the petitioner. According to learned Senior Counsel the

preliminary objections raised by the petitioners went to the root of the matter and in case

the objections were upheld the appeal filed by the respondent no.1 would have been

dismissed as not tenable. Learned Senior Counsel submitted that the appeal could not

have been entertained under the provisions of section 9 of the M.E.P.S. Act 1977,

simply for claiming back wages as the respondent no.1 had given up the claim for

reinstatement by the pursis dated 15.3.1999.

6] None appears on behalf of respondent no1. Though served.

7] Shri Ahirkar, the learned AGP appearing on behalf of respondent no.2 and 3 also

did not support the order passed by the Presiding Officer, School Tribunal Amravati on

21.32.2002 in view of the submissions made on behalf of the petitioners.

8] I have considered the submissions made on behalf of the parties and perused the

preliminary objections raised by the petitioners before the Tribunal along with the

judgment dated 21.3.2002. It is rightly submitted on behalf of the petitioner that the

preliminary objection went to the root of the matter and it was necessary for the

Tribunal to have considered the preliminary objection before deciding the issue of back

wages. The reason recorded by the Tribunal for not considering the first preliminary

objection is unreasonable. The second preliminary objection raised by the petitioner

about the tenability of the appeal has not been considered by the Tribunal and no reason

is recorded by the Tribunal for not considering the same. It was the duty of the Tribunal

to have considered both the preliminary objections before deciding the issue of back

wages. The judgment of the School Tribunal is unsustainable.

9] In the result the writ petition is allowed. The impugned judgment passed by the

School Tribunal on 21.3.2002 is hereby set aside. The matter is remanded to the School

Tribunal to decide the appeal afresh on merits, after considering the preliminary

objections raised by the petitioners. Since the matter is an old one, the Presiding Officer

is directed to decide the same as early as possible and positively within a period of four

months from the date of the appearance of the parties before the School Tribunal. The

petitioner undertakes to remain present before the School Tribunal on 4.1.2010. Rule is

made absolute in the aforesaid terms. No order as to costs.

JUDGE

SMP.