Bombay High Court
Satmala Banjara Shikshan ... vs Prithviraj Devising Pardeshi And ... on 25 April, 2016
Bench: R.V. Ghuge
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.4789 OF 2015
1. Satmala Banjara Shikshan Sanstha,
Hanmantkheda, Tq.Soygaon,
Dist. Aurangabad,
Through its President,
Radhabai w/o Kailashchandra Rathod,
Age-32 years, Occu-Agriculturist and President,
R/o Hanmantkheda, Tq.Soygaon,
Dist.Aurangabad,
2. Rajendra S/o Bhaskarrao Patil,
Age-48 years, Occu-Service,
Head Master, Swatantrya Sainik,
Sarichand Rathod Secondary School,
At Hanmantkheda, Tq.Soygaon,
PETITIONERS
Dist.Aurangabad.
VERSUS
1. Prithviraj S/o Devising Pardeshi,
Age-38 years, Occu-NIL,
R/o At Gallan, Tq. Pachora,
Dist. Jalgaon,
2. The Education Officer (Secondary),
Zilla Parishad, Aurangabad RESPONDENTS
Mr.M.S.Taur h/f Mr.A.N.Kakade, Advocate for the petitioners.
Mr.S.R.Kolhare, Advocate for respondent No.1.
Mrs.S.S.Raut, AGP for respondent No.2.
( CORAM : RAVINDRA V. GHUGE, J.)
DATE : 25/04/2016
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard finally by the
consent of the parties
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2. The petitioners are aggrieved by the judgment and order dated
13/01/2015 delivered by the School Tribunal, Aurangabad by which
Appeal No.164/2012 filed by respondent No.1/employee has been
allowed and the petitioner/Management is directed to reinstate him
in service with continuity and 40% back wages.
3.
This Court had considered the submissions of the learned
Advocates in its order dated 11/01/2016 as under :-
"1. Contention of the petitioner is that the appointment of
respondent No.1 was purely contractual. There was no intention of
regularizing his services having been appointed on contractual
basis. There was no vacancy available in the light of the following
four Peons appointed against four sanctioned permanent
vacancies:-
(a) Smt. Chandrakalabai S. Rathod - appointed on 14.6.1993,
(b) Shri Shaikh Mehboob - appointed on 14.6.1993,
(c) Shri Devidas Shenfadu Rajput - appointed on 11.6.1998 and
(d) Shri Kishor Patil - appointed on 11.6.1998 (read as
11.6.1997).
2. There is no dispute that respondent No.1 was appointed by
order dated 5.6.1998, w.e.f. 11.6.1998 and he continued in
employment till 24.11.2000. The petitioner contends that
respondent No.1 has abandoned service after 24.11.2000.
khs/April 2016/4789-d
3. Since the thrust of the petitioner's contention is based on the
ratio laid down by the Full Bench of this Court in the matter of
Ramkrushna Chavan Vs. Seth D.M.High School and others [2013
(2) Mah.L.J. 731] that all the above four appointees were appointed
by following the due procedure of law, I am inclined to direct the
petitioner to substantiate the said contention to the extent of the
appointees at Sr. Nos. (c) and (d) set out above.
4.
As such, the petitioner is directed to file an additional
affidavit along with all such documents, which according to the
petitioner would indicate that the appointees at Sr. Nos. (c) and (d)
above were appointed by following the due procedure of law.
5. Additional affidavit with documents shall be filed on/or
before 22.1.2016.
6. S.O. to 29.1.2016 for further consideration."
4. Pursuant thereto, the petitioner/Management has filed its
additional affidavit dated 29/01/2016 and respondent No.1 /
employee has filed a rejoinder dated 24/02/2016.
5. I have considered the submissions of the learned Advocates.
6. The issue is with regard to whether the petitioner, who was
khs/April 2016/4789-d
appointed temporarily from 11/06/1998 for two academic years
ending in April 2000, could be said to have been appointed on
probation. So also, the issue raised is whether the petitioner can be
presumed to be appointed on probation as a Peon in the non teaching
category and whether he could be given the benefit of Section 5 (2) of
the MEPS Act and be deemed to be confirmed in employment
7.
There is no dispute that the petitioner was appointed on
temporary basis w.e.f. 11/06/1998. The other employee at issue
namely Devidas Shenfadu Rajput was also appointed on 11/06/1998
and was retained in employment. Mr.Kishor Patil was appointed on
11/06/1997 prior to the petitioner. The Management has placed on
record the appointment order of Mr.Devidas Rajput which indicates
that he was appointed on "Probation" for a period of 2 years. It is not
in dispute that the issue raised by the employee pertains to a period
when the petitioner/Management was an unaided Institution.
8. Mr.Kolhare has strenuously supported the impugned judgment
and submits that the petitioner has exploited respondent No.1. He
has worked continuously for 3 years and since he was orally
terminated from service on 13/06/2001, he had preferred his appeal.
He further submits that the Management has not paid him his
khs/April 2016/4789-d
monthly wages during the said period whenever he has worked. He,
therefore, prays that the impugned judgment does not call for any
interference and this petition be dismissed with costs.
9. From the record, I find that respondent No.1 / employee has
signed the muster roll upto 24/11/2000. His appointment order,
however, indicates that he was appointed on temporary basis. The
petitioner/Management contended in its reply in Appeal No.164/2002
that the said employee had marked his attendance till 24/11/2000
and thereafter had been remaining absent.
10. The respondent/employee has primarily based his Appeal on 3
grounds :- Firstly ; that he has worked for 3 years, secondly ; he is
deemed confirmed and thirdly ; Mr.Devidas Rajput was appointed
after him and therefore respondent No.1 deserves to be reinstated in
service.
10. I find from the record that respondent No.1 was appointed on
contractual basis. The learned Full Bench of this Court in the
matter of Ramkrishna Chauhan Vs. Seth D.M.High School and
others, 2013(2) Mh.L.J. 713 has concluded that a temporary
employee working in the non teaching category and appointed for a
khs/April 2016/4789-d
temporary period or for a contractual period cannot be presumed to
have been appointed on probation,. Section 5(2) therefore would not
be applicable.
12. Considering the view of the learned Full Bench in the matter of
Ramkrishna Chauhan (supra) and the fact that Mr.Devidas Rajput
cannot be compared and is not comparable with the appointment of
respondent No.1, it would not entitle respondent No.1 to any parity
with Mr.Rajput.
13. There is no dispute that the posts of peon have not been
increased. Four persons named above are presently working as
Peons against 4 sanctioned permanent posts. Respondent No.1,
being the last amongst these 5 persons and having been appointed
on contractual basis, would have no right and the view taken by the
Tribunal in the impugned judgment therefore calls for interference.
14. Mr.Kolhare, learned Advocate has raised an issue of the
petitioner/Management having not paid the monthly salary of
respondent No.1. As such, I deem it appropriate to direct the
petitioner/Management to ensure that any unpaid salary of
respondent No.1 shall be paid to him within a period of 8 (eight)
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weeks from today, failing which the said amount shall attract simple
interest @ 3% p.a. from the date of the judgment of the School
Tribunal.
15. In the result, this petition is partly allowed. The impugned
judgment of the School Tribunal dated 13/01/2015 is quashed and
set aside. Appeal No.164/2002 stands dismissed.
16. However, the petitioner shall pay the unpaid salary of
respondent No.1, as directed above.
17. Rule is made partly absolute in the above terms.
( RAVINDRA V. GHUGE, J.)
khs/April 2016/4789-d
