The Secretary Jan Seva Bhavi ... vs Shankar Nivrutti Tambade And ...
2016 Latest Caselaw 4398 Bom

                                         1




                                                                          
             IN THE HIGH COURT OF JUDICATURE OF BOMBAY   
                         BENCH AT AURANGABAD




                                                  
                           WRIT PETITION NO.12568 OF 2015

    1.     The Secretary,
           Jan Seva Bhavi Sanstha,




                                                 
           Ghatsavali, Tal. and Dist. Beed,

    2.     The President,
            Jan Seva Bhavi Sanstha,




                                        
           Ghatsavali, Tal. and Dist. Beed             --       PETITIONERS

           VERSUS             
    1.     Shankar Nivrutti Tambade,
           Age-39 years, Occu-Nil,
                             
           R/o C/o B.G.Tambade,
           Near Canada Bank, Dhanora Road,
           Beed, Tal. and Dist. Beed,

    2.     The Head Mistress,
      


           Late Lala Patil Phad Madhyamik Vidyalaya,
           Ghatsavali, Tal. and Dist. Beed,
   



    3.     The Education Officer (Secondary),
           Zilla Parishad, Beed.                     --        RESPONDENTS

WITH WRIT PETITION NO.2775 OF 2016

1. The Secretary, Jan Seva Bhavi Sanstha,

Ghatsavali, Tal. and Dist. Beed,

2. The President, Jan Seva Bhavi Sanstha, Ghatsavali, Tal. and Dist. Beed -- PETITIONERS

VERSUS

1. Dhananjay Dhondiram Phad, Age-35 years, Occu-Nil,

khs/AUGUST 2016/12568-d

R/o Ghatsavali, Taluka and District Beed,

2. The Head Mistress, Late Lala Patil Phad Madhyamik Vidyalaya, Ghatsavali, Tal. and Dist. Beed,

3. The Education Officer (Secondary), Zilla Parishad, Beed. - RESPONDENTS

Mr.S.S.Jadhavar, Advocate for the petitioners. Mr.R.I.Wakade, Advocate for respondent No.1 in both petitions.

ig ( CORAM : RAVINDRA V. GHUGE, J.)

DATE : 03/08/2016

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally by the

consent of the parties.

2. In both these petitions, the Management is the petitioner.

Respondent No.1/Employees in both the matters are identically

placed. The management has challenged identical judgments both

dated 24/04/2015, by which Appeal No.26/2012 and 27/2012 filed

by the respondents/employees have been allowed.

3. Mr.Jadhavar, learned Advocate for the Management has

strenuously criticized the impugned judgments. His basic submission

khs/AUGUST 2016/12568-d

is that though both the respondents/employees have been working

for 11 years and 6 years respectively, none of them were appointed by

following the due procedure laid down in Law. There was no

advertisement, no interviews and no selection process. Though the

Management operates the late Lala Patil-Phad Madhyamik

Vidhyalaya, Ghat Savali, Tal. and Dist. Beed on 'no grant' basis, it

has to maintain a proper teacher-student ratio. Merely because the

respondents worked for about 6 to 11 years, would not render them

permanent employees of these establishments.

4. He further submits that both the respondents were engaged

only because they desired to acquire experience and qualifications.

In 2012, their services were dispensed with because the earlier

Secretary, who was also the Head Mistress had illegally issued

appointment orders on 15/06/2010 thereby creating a picture that

these respondents are appointed on probation. In fact, the

appointment orders are not signed by the School Committee.

5. It is further submitted that merely because the respondents

were given an opportunity to gather experience and the Management

had the bonafide intention of permitting them to work only for

gathering experience, the respondents have mustered the support of

khs/AUGUST 2016/12568-d

the earlier Secretary and she has issued the appointment orders in

her capacity as a Secretary, though no authorized representative of

the Management had issued any appointment orders to the

respondents. Reliance is placed upon the judgment in the case of

Priyadarshini Education Trust and Others Vs. Ratis (Rafia) Bano

Abdul Rasheed and others, 2007(6) All MR 238 so as to contend that

unless the appointment orders are legal and proper, no employee can

be retained in employment, much less be reinstated.

6. Learned Advocate for the respondents/employees submits that

the employee in the first case had worked for 11 years and the

employee in the second case had worked for 6 years. The first

employee namely Mr.Tambade was not qualified when he was

engaged in 2000 as an "Assistant Teacher". He gathered qualification

on 10/05/2011 while being in the service of the petitioner. The

second employee namely Mr.Dhananjay Phad was actually qualified

when he was appointed for the first time in 2006. He has worked for

about 6 years.

7. It is further submitted that the school at issue is a non grant-

in-aid school. In 2002, there was a staffing pattern, by which the

Head Mistress and Mr.Tambade were accommodated against two

khs/AUGUST 2016/12568-d

vacant posts. Thereafter by natural growth, since the number of

students and divisions increased, Mr.Phad was appointed against a

permanent vacant post as he was qualified for the same.

8. He further submits that none of the respondents were paid

their monthly salary from the date of their appointments. They have

been exploited by the petitioner. Only after they started demanding

their salary and there was a possibility that the Management would

acquire grants-in-aid, that the respondents were orally terminated on

10/08/2012.

9. I have considered the submissions of the learned Advocates.

10. There is no dispute about three aspects. Firstly, that

Mr.Tambade and Mr.Phad have been working for 11 years and 6 years

respectively in the said school. Secondly, the Management has not

paid them their salary on the ground that they were allowed to work

only to gather an experience so as to improve their service prospectus

elsewhere. It is also undisputed that none of the respondents were

appointed by virtue of any appointment order.

11. It is apparent from the fact situation as above, that the

khs/AUGUST 2016/12568-d

petitioner/Management permitted the respondents to work as

teachers without issuing any appointment order and without

payment of salary. The Management submits that the teachers were

engaged for their own benefit of gaining experience. The

respondents/teachers contend that they were orally appointed but

have actually worked.

12.

The School Tribunal has taken into account that the Education

Officer used to conduct inspection of the school and it was noticed

that these two employees were regularly working with the School.

They have also performed their duties during the examinations

conducted in the School. For the entire duration for which these

respondents were working, the Management has not raised any

protest or objection with regard to their working, though it is

strenuously submitted before the Court that the Head Mistress

surreptitiously appointed the respondents.

13. I find it quite conspicuous that the Management did not raise

any objection to the presence of the respondents as teachers in its

school. There was no objection when these two teachers discharged

their duties of imparting education. It was in 2012 that suddenly it

dawned upon the Management after a passage of 11 and 6 years

khs/AUGUST 2016/12568-d

respectively that these respondents were not legally appointed.

14. I find from a number of cases dealt with by me that the

teachers are employed for years together and when the relation

between the teachers and the Management sours, the Management

puts forth the plea that the very appointment of the teacher is illegal.

I have noticed in a number of cases that the Management, who

appoints such teachers without following the due procedure, takes

undue advantage of its own wrong by orally terminating the teachers

and then putting forth a stand before the Tribunal that their very

engagement was illegal.

15. I have delivered a judgment in practically similar facts in WP

No.9329/2015 in between Trimurti Balak Mandir Shikshan Sanstha

Through its Secretary and another Vs Vithabai Bhikan Desale and

others, wherein the Management had taken a similar stand that the

teacher was working for years together, since the Management

allowed the teacher to gather experience without any lawful

appointment. By judgment dated 22/03/2016 delivered by this

Court, the claim of the Management has been rejected and the

reinstatement of the teachers has been sustained. It is informed that

the Hon'ble Supreme Court, by its order dated 15/07/2016, has

khs/AUGUST 2016/12568-d

dismissed SLP (Civil) No.15420/2016 of the Management.

16. In the instant case, it is quite surprising that the Management

allowed the employees to work for several years without salary. The

moment the teachers prayed for their salary, the Management has

disengaged them on the plea that their induction in service itself is

illegal.

17. I have gone through the impugned judgment of the School

Tribunal, which has considered the above position and has also

taken into account that the Education Officer has noted that these

respondents were working despite their temporary engagement, for

years. The staffing pattern indicates that both these respondents

can be accommodated against vacant posts. The seniority list

indicates that the respondent in the first petition was constantly at

Sr.No.2 and the respondent in the second petition was at Sr.No.4.

Both of them have worked for 11 years and 6 years respectively.

18. Considering the above, I find it appropriate to conclude that

the Management, in such circumstances, cannot be permitted and is

estopped from taking advantage of it's own wrong and thereby exploit

the teachers. The impugned judgments, therefore, do not appear to

khs/AUGUST 2016/12568-d

be perverse or erroneous.

19. Consequently, both these petitions are dismissed. Rule is

discharged.

( RAVINDRA V. GHUGE, J.)

khs/AUGUST 2016/12568-d