Bombay High Court
Dattatraya Tulsidas Bhutte vs Secretary Syamlal Memorial ... on 18 August, 2016
Bench: R.V. Ghuge
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2061 OF 2000
Dattatraya s/o Tulsidas Bhutte,
Age : 35 years, Occupation : Service,
R/o Niture Niwas,
Behind Hawagi Swami College,
Udgir, District Latur.
...PETITIONER.
-VERSUS-
1 The Secretary,
Shyamlal Memorial Education Society,
Udgir, Taluka Udgir,
District Latur.
2 The Head Master,
Shyamlal Memorial Higher Secondary
School, Udgir, Taluka Udgir,
District Latur.
3 The Head Mistress,
Shamaraya Kanya Vidyalaya,
Udgir, Taluka Udgir,
District Latur.
4 The Deputy Director of Education,
Aurangabad Region, Aurangabad.
5 The Education Officer (Secondary),
Zilla Parishad, Latur.
6 Laxman P. Ugile,
Age : Major, Occupation : Service
as Assistant Teacher in Shyamlal
Memorial High School, Udgir,
Taluka Udgir, District Latur.
7 The State of Maharashtra.
...RESPONDENTS
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WITH
WRIT PETITION NO.2062 OF 2000
Dattatraya s/o Tulsidas Bhutte,
Age : 35 years, Occupation : Service,
R/o Niture Niwas,
Behind Hawagi Swami College,
Udgir, District Latur.
...PETITIONER.
-VERSUS-
1 The Secretary,
Shyamlal Memorial Education Society,
Udgir, Taluka Udgir,
District Latur.
2 The Head Master,
Shyamlal Memorial Higher Secondary
School, Udgir, Taluka Udgir,
District Latur.
3 The Head Mistress,
Shamaraya Kanya Vidyalaya,
Udgir, Taluka Udgir,
District Latur.
4 The Deputy Director of Education,
Aurangabad Region, Aurangabad.
5 The Education Officer (Secondary),
Zilla Parishad, Latur.
6 V.N.Golampalle,
Age : 48 years, Occupation : Service
as Assistant Teacher in Shyamlal
Memorial Junior College, Udgir,
Taluka Udgir, District Latur.
7 The State of Maharashtra.
...RESPONDENTS
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...
Advocate for Petitioner : Shri V.G.Sakolkar.
Advocate for Respondents 1 to 3 : Ms.Jayshree Gude h/f Shri S.S.Arya.
AGP for Respondents 4, 5 and 7/ State : Shri P.N.Kutti.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 18th August, 2016
Oral Judgment :
1 The Petitioner/ Employee is aggrieved by the dismissal of his
appeals by the impugned judgments delivered by the School Tribunal
dated 24.02.2000.
2 These petitions have been admitted by this Court. While
considering the request of the Employee for interim relief, this Court, by
it's order dated 29.09.2000 has observed as under:-
"Rule.
2. The learned counsel for the petitioner states that
during the pendency of the petition, the petitioner
would be willing to work on any post which will be
available in the first respondent school where he was
employed. The first respondent will duly consider the
request made by the petitioner for being assigned
work, in case any is available, during the pendency of
the petition.
3. As and by way of an interim arrangement, the
petitioner submits that in terms of Rule 26(4) of the
Maharashtra Employees of Private Schools
(Conditions of Service) Rules, 1981, if the post from
which the petitioner has been retrenched is revived or
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if additional posts are created, a fresh opportunity
should be given to the petitioner for being engaged.
The claim of the petitioner at the present stage is that
he should be treated as a full time employee, though
the appointment order was to the effect that he was a
part time employee. In that view of the matter, a
direction in terms of Rule 26 of the Rules of 1981
would not be appropriate at the present stage.
However, the first respondent shall give an
opportunity to the petitioner to work, if any work is
available. It is common ground between the parties
that the order of termination dated 31st July, 1996,
came to be stayed by the Tribunal. The petitioner has
since worked but has not been paid his salary. The
first respondent may apply to the Education Officer
for the release of the grant towards the salary of the
petitioner for the period during which the petitioner
has worked in pursuance of the interim order passed
by the Tribunal. Any such application made by the
management shall be duly considered by the
Education Officer within a period of two weeks from
today. However, it is made clear that the liability of
management to pay the salary to the petitioner for
the period during which he has worked, shall not be
conditional upon the grant being sanctioned by the
Education Officer."
3 The contentions of Shri Sakolkar, learned Advocate for the
Petitioner/ Employee, can be summarized, in brief, as under:-
(a) The Petitioner was B.Com., M.P.Ed. in 1990 and therefore,
qualified to be appointed as an Assistant Teacher.
(b) An advertisement was published by Respondent No.1/
Educational Institution inviting applications from candidates
who were qualified for appointment as Part Time Teachers
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(Clock Hour Basis).
(c) The qualifications held by the Petitioner made him eligible for
applying for the said post.
(d) By order dated 01.09.1990, the Petitioner was appointed
pursuant to the advertisement.
(e) The appointment order indicated that he was appointed
purely on temporary basis for one academic year.
(f) By another appointment order dated 18.06.1991, the
Petitioner was again continued for the next academic year.
(g) By order dated 01.06.1992, he was again continued for one
academic year.
(h) By a similar order dated 11.06.1993, he was continued for
another academic year.
(i) It is stated that the Petitioner was continued in service by
further orders for each academic year.
(j) By order dated 20.06.1995, he was converted from part-time
teacher to a Full Time Teacher and transferred to Shamarya
Kanya Vidyalaya, Udgir from his earlier place of work in
Shyamlal Memorial High School, Udgir.
(k) By order dated 31.07.1996, his service was brought to an end
with immediate effect from 01.08.1996 on the ground that
the strength of students has fallen in Shamarya Kanya
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Vidyalaya.
(l) The Petitioner filed his Appeal No.258/1996 before the
School Tribunal at Aurangabad alleging that one person,
namely, Shri L.P.Ugile, who is Respondent No.6 in Writ
Petition No.2061/2000, was junior to him in the same
Physical Education faculty and yet, was retained in service.
(m) By interim order passed by the School Tribunal on
19.08.1996, he continued in employment and pursuant to the
dismissal of his appeal, he was terminated.
(n) By impugned judgment dated 24.02.2000, the appeal filed by
the Petitioner was dismissed.
(o) The Management has deliberately not maintained the record
of seniority and has not rendered any assistance to the School
Tribunal.
(p) The seniority of the Petitioner was deliberately suppressed on
the ground that he was a part time teacher and therefore, his
name was not included in the seniority list.
(q) Reliance is placed upon the affidavit in reply dated
04.08.2016 filed by Dr.Ganpat More, Education Officer
(Secondary), Zilla Parishad, Latur to indicate that the
Management is not supplying enough material and details of
the teaching and non-teaching staff under Schedule-F of the
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MEPS Rules, 1981 for preparation of the seniority and as a
consequence, the Education Officer is unable to prepare the
seniority list. The Education Officer further indicates that the
name of the Petitioner was not included in the seniority list at
the time of his termination on the ground that he was a
temporary teacher.
(r) In paragraph 6(B) of the said affidavit, the Education Officer
further submits that though the Respondent/ Management is
operating three institutions, namely, (1) Shyamlal Memorial
High School, Udgir, (2) Shamarya Kanya Vidyalaya, Udgir and
(3) Shivaji Vidyalaya, Rohina, Tq.Udgir, District Latur,
because of paucity of detailed records, the work-load cannot
be assessed as on date.
(s) It is prayed that the Petitioner be reinstated in service and in
the event, there is no work-load, he may be entered in the list
of surplus employees so as to give him an opportunity to be
absorbed in any other school.
(t) The Petitioner reluctantly agrees to waive the back-wages
from February, 2000 when he was ultimately terminated so as
to ensure that he would get notional continuity of service and
it would improve his chances to enter in the list of surplus
teachers considering that he is presently 51 years of age and
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his retirement would be at the age of 60 years.
4 The learned Advocate for the Educational Institution has
vehemently opposed the petitions and has supported the impugned
judgments. The contention is that the Petitioner was appointed pursuant
to an advertisement for engaging part-time teachers. His subsequent
transition from part time to a full time teacher has not been accepted by
the Education Officer. Since the Education Officer did not grant approval,
the Management terminated his services when the strength of students fell
and there was reduction in the staff.
5 It is submitted that the work-load available in the said three
schools is not sufficient and hence, the Petitioner cannot be
accommodated.
6 Reliance is placed upon the following judgments by the
Respondent/ Management :-
(a) Priyadarshini Education Trust vs. Ratis (Rafia) Bano d/o
Abdul Rasheed, 2007(6) Mh.L.J. 667.
(b) Shaikh Jamalchand vs. Maharashtra Seva Sangh, LPA
No.178/2009 in Writ Petition No.5556/1999 dated
20.08.2009 (Bombay High Court).
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(c) Vidya Bharti Shikshan Sanstha vs. Presiding Officer,
Additional School Tribunal, Writ Petition No.399/2001 dated
08.04.2010 (Nagpur Bench).
7 The learned AGP relies upon the first affidavit filed on
15.06.2016 and the second affidavit dated 04.08.2016. He submits that
the Education Officer has categorically stated that the Petitioner's name is
not found in the seniority list as the Management submitted the seniority
list that was prepared after the termination of the Petitioner. There has
been no cooperation from the Management. As per the staffing pattern of
the three schools of the Management, their total strength of students is
more than 2500 for conducting classes from 5 th to 10th standards. He relies
upon the details of the staffing pattern of the said three schools which is
placed on record in support of the affidavit filed by the Education Officer.
8 The learned AGP further submits, on the basis of the second
affidavit, that the present Management is not rendering any assistance to
the Education Officer. It is the duty of the Management to prepare the
seniority list of the teaching and non-teaching staff under Rule 12 of the
MEPS Rules, 1981 and submit the same to the Education Officer. The
Management has not complied with the said provision and has not
submitted such details. Had the details about the number of students,
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number of divisions and seniority been submitted to the Education Officer,
he would have been in position to make a specific statement with regard
to the status of the Petitioner who has been working from 1990 till 1996.
9 Having considered the submissions of the learned Advocates
as above, it is apparent that the Management is not rendering assistance
to the Education Department for preparation of the staffing pattern and
the seniority list. A document prepared by the Management on
29.07.2016 which is submitted to the Education Department indicates that
the Petitioner is kept out of the seniority list on the pretext that he is a
part-time employee. Respondent No.6 (Mr.Ugile) herein, who also has the
qualification of M.P.Ed., had joined on 01.09.1993 when the Petitioner had
joined on 01.09.1990. He was, therefore, three years ahead of Respondent
No.6. The defence taken by the Management is that Respondent No.6
(Mr.Ugile) was appointed as a full time teacher and the Petitioner was
appointed as a part time teacher.
10 The impugned judgment of the School Tribunal indicates that
it has accepted the defence of the Management without verifying the
records. The Petitioner had made a specific averment that there were total
55 divisions of the 5th to 10th standards in the said three schools. There
were 31 divisions in Shyamlal Memorial High School, Udgir, 18 divisions
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in Shamarya Kanya Vidyalaya and 06 divisions in Shivaji Vidyalaya,
Rohina. There were 11 Physical Training Instructors posts and only 07
posts were filled in. There was no Physical Education Teacher at Shivaji
Vidyalaya, Rohina. Firstly, the School Tribunal should have gone into these
aspects and should have ensured that the details in connection with the
service of the Employee were placed before it. Despite the fact that the
Management is not putting forth adequate details so as to suppress the
seniority list and in order to justify the termination of the Petitioner, the
School Tribunal failed to draw an adverse inference.
11 Even during the course of the hearing of these petitions, the
learned Advocate for the Management, besides pointing out certain
portions of the Written Statement filed before the School Tribunal, has
been unable to state as to whether, the entire seniority list of the teaching
and non-teaching staff of these three high schools was prepared or not.
Nevertheless, the statement made by the Education Officer on oath is a
sufficient indicator of the Management having suppressed the material
information and details from the Education Officer.
12 Considering the number of teaching hours put in by the
Petitioner which is about 22 periods per week, 18 periods in Shyamlal
Memorial High School and 04 periods in Shamarya Kanya Vidyalaya, the
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School Tribunal ought not to have dismissed the appeal, when the
Management failed to prove to the contrary.
13 Considering the above, reliance placed on the judgments cited
by the Management would be of no assistance since they pertain to the
issue of deemed permanency under Section 5 of the MEPS Act, 1977.
14 It is undisputed that after the termination of the Petitioner, he
was granted interim relief by the School Tribunal and he continued in
employment till February, 2000 thereby, putting in 10 years in service. It
also appears from the record that the Management tried to ensure that
sufficient information was not placed before the School Tribunal as well as
before this Court, which was aimed at truncating the claim put forth by
the Petitioner. In this backdrop, in my view, ends of justice would be met
by partly allowing this petition and by giving notional reinstatement with
continuity in service and directing the Education Officer to enter the name
of the Petitioner in the list of surplus teachers in the event there is no
work-load available to engage the Petitioner with any of the three schools
of the Management.
15 In the light of the above, the first petition is partly allowed.
The order of termination is set aside and the Petitioner is granted notional
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reinstatement with continuity of service. However, he would not be
entitled for back-wages from the date of termination till the date of this
order.
16 The Education Officer shall, accordingly, investigate by
directing the Management to submit the entire details about it's number of
students, number of divisions and number of teaching staff especially in
the Physical Education faculty within a period of SIX WEEKS from today
and accordingly, assess the work-load available. In the event, there is
work-load to accommodate the Petitioner, the direction to that effect shall
be issued so as to allot duties to the Petitioner in any of the three schools
run by the Management. He shall be entitled to wages on parity with
similarly placed employees which shall be paid by the Management.
17 In the event, no work-load is available, the name of the
Petitioner shall be entered in the list of surplus employees and he shall be
absorbed wherever it is possible to do so in accordance with the Rules.
Needless to state, in the event the work-load is created or found in future
in any of the schools operated by the Management and by that time, the
Petitioner is still not absorbed, the Education Officer shall direct his
absorption in any of the schools run by the Respondent/ Management.
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18 Rule is made partly absolute in the above terms.
19 The second petition is, therefore, rendered infructuous and is
disposed of. Rule is discharged.
kps (RAVINDRA V. GHUGE, J.)
