Ku. Surekha D/O Waman Chatur ... vs State Of Maharashtra Thr. Its ...
2016 Latest Caselaw 1610 Bom

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




                                                                                              
                                WRIT PETITION NO.386/2016




                                                                    
          Ku. Surekha d/o Waman Chatur,
          (Kandarkar), aged about 47 years,
          Occ. Nil, r/o Plot no. 22, Smruti Nagar,
          Dighori, Nagpur.                                            .....PETITIONER




                                                                   
                               ...V E R S U S...

     1. State of Maharashtra, through
        its Secretary, tribal Welfare Department, 
        Mantralaya, Mumbai-400 032.




                                                   
     2. Scheduled Tribe Caste Certificate Scrutiny
                              
        Committee, Nagpur Division, Nagpur,
        through its Vice Chairman, Adivasi Vikas
        Bhavan, Giripeth, Nagpur.
                             
     3. Nirmal Education Bahuudeshiya Sanstha,
        Nagpur, 149, Dattatraya Nagar,
        Ayodhya Nagar, nagpur - 440 024, through
        its Secretary.
      


     4. Head Mistress, Gayatri Vidyalaya,
   



        Gayatri Nagar, Nagpur.

     5. The Education Officer (Secondary),
          Zilla Parishad, Nagpur.                                     ...RESPONDENTS
     ---------------------------------------------------------------------------------------------------





     Mr. P. S. Khubalkar, Advocate for petitioner.
     Mr.S.M.Ukey, Additional Government Pleader for respondent nos. 1,2,5.
     Mr. V. R. Chaudhari, Advocate for respondent no.3.
     ---------------------------------------------------------------------------------------------------





                                     CORAM:-  SMT. VASANTI A. NAIK AND
                                               V. M. DESHPANDE, JJ.

DATED :- APRIL 18, 2016

ORAL JUDGMENT (Per : Smt. Vasanti A. Naik, J.)

Rule. Rule returnable forthwith. Heard finally by consent

of the learned counsel for the parties.

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2. By this petition, the petitioner seeks a declaration that she is

entitled for the protection of her services and reinstatement in service as

an Assistant Teacher in the respondent no.4-School in view of the

judgment of the Full Bench in the case of Arun Vishwnath

Sonwane..vs..State of Maharasthra and others reported in 2015 (1)

Mh. L. J. 457. The petitioner challenges the order of termination dated

08.02.2012 and seeks her reinstatement with continuity of service and

back-wages.

3. The petitioner was appointed in the respondent no.4-School

run by the respondent no.3-Education Society as an Assistant Teacher

on a post earmarked for the Scheduled Tribes. The appointment of the

petitioner was made on 28.08.1998. Since the petitioner claimed to

belong to Dhangad-Scheduled Tribe, the caste claim of the petitioner

was referred to the Scrutiny Committee for verification. The Scrutiny

Committee invalidated the caste claim of the petitioner by an order

dated 25.01.2012. The petitioner had challenged the order of the

Scrutiny Committee but without success. In view of the judgment of the

Full Bench, the petitioner has sought the protection of her services as

the petitioner was appointed before the cut off date and there is no

observation in the order of the Scrutiny Committee that the petitioner

had fraudulently secured the benefits meant for the Dhangad-Scheduled

Tribe.

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4. Mr. Khubalkar, the learned counsel for the petitioner

submitted that the petitioner was appointed before the cut off date in

the year 1998 and there is no finding of fraud recorded against the

petitioner by the Scrutiny Committee. It is stated that both the

conditions that are required to be satisfied while seeking the protection

of the service in view of the judgment of the Full Bench, stand satisfied

in the case of the petitioner. It is submitted that in this background, a

direction may be issued against the respondent nos. 4 and 5 to reinstate

the petitioner in service with the continuity of service.

5. Mr. Choudhari, the learned counsel for the respondent nos.

3 and 4 does not dispute the position of law as laid down by the Full

Bench. It is, however, stated that the respondent nos. 3 and 4 would

not be in a position to reinstate the petitioner in service as there is no

vacancy in the post of Assistant Teacher in the respondent nos. 3-

School. It is stated that only one post of Physical Training Instructor is

available but the petitioner cannot be appointed in the said post. It is

stated that an appropriate order may be passed in the circumstances of

the case.

6 Mr. Khubalkar, the learned counsel for the petitioner states

that if a post of the Assistant Teacher is not available in the respondent

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no.3-School, the petitioner could be brought on the list of surplus

teachers maintained by the respondent-Education Officer under Rule 26

of the Maharashtra Employees of Private Schools (Conditions of

Service) Rules, 1981 as the petitioner was a permanent employee and

her services are terminated due to the invalidation of her caste claim. It

is stated that the grievance of the petitioner would stand redressed if

the respondent-Education Officer is directed to include the name of the

petitioner in the list maintained by the respondents under Rule 26 of

the Rules of 1981 and the petitioner is absorbed in some other school.

7. Mr. Ukey, the learned Additional Government Pleader states

that if an appropriate order is passed, the respondent-Education Officer

(Secondary) would include the name of the petitioner in the list of the

surplus teachers that is maintained under Rule 26 of the Rules of 1981.

8. In the circumstances of the case, since the petitioner had

worked for more than 14 years with the respondent no.3 as an Assistant

Teacher and since there is no finding of fraud recorded against the

petitioner by the Scrutiny Committee, the relief in respect of protection

of service of the petitioner is required to be granted. However, since

there is no vacancy in the post of the Assistant Teacher in the

respondent no.3-School, in the facts and circumstances of the case, it

would be necessary to direct the Education Officer (Secondary) to

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include the name of the petitioner in the list maintained by the

Education Officer under Rule 26 of the Rules of 1981 so that the same

could be forwarded to the School in which there is a vacancy in the post

of Assistant Teacher. Though, the petitioner would be entitled to the

absorption in service with continuity of service, in the circumstances of

the case, the petitioner would not be entitled to the arrears of salary for

the period during which the petitioner was out of service. The

petitioner would also not be entitled to the benefits flowing from the

order of continuity of service for the period during which the petitioner

was out of service.

9. Hence, for the reasons aforesaid, the writ petition is partly

allowed. It is hereby declared that the petitioner is entitled to the

protection of the service in view of the judgment of the Full Bench in

the case of Arun Vishwnath Sonwane..vs..State of Maharashtra and

others reported in 2015 (1) Mh. L. J. 457. In the circumstances of the

case, we direct the respondent-Education Officer (Secondary) to include

the name of the petitioner in the list maintained under Rule 26 of the

Rules of 1981 so that her name could be recommended to the school in

which the vacancy in the post of the Assistant Teacher, is available.

Though, the petitioner would be entitled to the salary from the date of

her reinstatement/absorption in some school, the petitioner would not

be entitled to claim the arrears of salary and the other monetary

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benefits flowing from the order of continuity of service. The petitioner

shall furnish an undertaking in this Court and before the Education

Officer (Secondary) within a period of four weeks that neither the

petitioner nor her progeny would claim the benefits meant for the

Dhangad-Scheduled Tribe in future. The respondent-Education Officer

(Secondary) should take immediate steps to include the name of the

petitioner in the list maintained under Rule 26 of the Rules of 1981 and

ensure that the petitioner is absorbed in the service of some other

school within a period of three months.

Rule is made absolute in the aforesaid terms with no order

as to costs.

                    (V. M. Deshpande, J.)        (Smt. Vasanti A. Naik, J.)
      
   



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