Bombay High Court
Kishor S/O Chandrabhanji Patil vs State Of Maharashtra, Through Its ... on 19 August, 2016
Bench: V.A. Naik
WP 3844.15 [J].odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.3844 OF 2015
Kishor s/o Chandrabhanji Patil,
Aged about 40 years,
Occupation-Nil,
R/o. Digras, Post-Zadgoan,
Tahsil & District-Wardha. .. Petitioner
ig .. Versus ..
1] State of Maharashtra, Through its
Secretary, Department of Secondary
& Higher Secondary Education,
Mantralaya, Mumbai-32.
2] Deputy Director of Education, Nagpur.
3] Education Officer, Wardha.
4] Superintendent of Provident Fund & Pay,
Wardha.
5] Krushak High School & Junior College,
Near District of Reshim Office, Sawangi Road,
Wardha, Through its Headmaster.
6] Hindavi Swarajya Shikshan Sanstha,
Sudampuri, Esaji Layout, Wardha;
Through its Secretary.
7] Shetkari Shikshan Prasarak Mandal,
Through its Secretary, Vibhatai Date,
Nagsen Nagar, Near Gurudeo Moter,
Mhasala Road, Wardha. .. Respondents
..........
Shri C.B. Dharmadhikari, counsel for the petitioner,
Shri P.S. Tembhare, A.G.P. for respondent nos.1 to 3,
Shri P.S. Tiwari, counsel for respondent no.6,
Shri R.L. Khapre, counsel for respondent no.7.
..........
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WP 3844.15 [J].odt 2
CORAM : SMT. VASANTI A NAIK AND
KUM. INDIRA JAIN, JJ.
DATED : AUGUST 19, 2016.
ORAL JUDGMENT : (Per : SMT. VASANTI A NAIK, J.)
Rule. Rule is made returnable forthwith. The petition is heard
finally with the consent of the learned counsel for the parties.
By this writ petition, the petitioner seeks a direction to the
respondents to release the salary of the petitioner for the academic year 2010-
2011. By amending the writ petition, the petitioner has also challenged the
advertisement, dated 22.8.2015 issued by the respondent-management
inviting applications for appointment on the post of Assistant Teacher.
According to the petitioner, one Ms. Gharphalkar, who was
working as an Assistant Teacher in the school run by the respondent no.6-
management, went on leave in the year 2005 and the petitioner was appointed
in the leave vacancy on year to year basis from 2005. The proposal for grant
of approval to the appointment of the petitioner on yearly basis was sent by
the management to the education authority and the education authority
approved the services of the petitioner from year to year. The petitioner
received the salary from the state exchequer as the school is a grand-in-aid
school, till the end of the academic session 2009-2010. The petitioner was
continued in service by the management in the academic session 2010-2011
also. The salary of the petitioner for the said session was neither paid by the
management nor by the education authorities. The petitioner then filed a writ
petition seeking a direction against the education authority to consider
granting permanent approval to the appointment of the petitioner, as the
petitioner was continued in service for more than five years. This court
directed the Deputy Director of Education to decide the proposal for grant of
regular approval to the petitioner's appointment. The said proposal was,
however, rejected in March, 2014. The Deputy Director of Education held that
the petitioner was not entitled to grant of approval, as proper procedure for
selection and appointment was not followed by the management while
appointing the petitioner on year to year basis. The Deputy Director of
Education held that the management could not have appointed the petitioner
on yearly basis in a leave vacancy. The Deputy Director of Education held that
the petitioner was not entitled to approval from the academic year 2010-2011
onwards. The Deputy Director of Education further held that the petitioner
would not be entitled to receive the salary for the academic year 2010-2011
from the state exchequer and it would be necessary for the management to pay
the salary to the petitioner for the said period. Despite the said order, since
the salary is not paid to the petitioner, the petitioner has filed the instant
petition. Since, during the pendency of the writ petition, an advertisement
was issued by the management inviting applications for appointment on the
post of Assistant Teacher, the petitioner has challenged the said advertisement.
Shri Dharmadhikari, the learned counsel for the petitioner,
submitted that despite the specific direction of the Deputy Director of
Education, the management has not paid the salary to the petitioner for the
academic session 2010-2011. It is stated that the management is not justified
in denying permanency to the petitioner and the issuance of the advertisement
by the management, in the circumstances of the case, is not correct. It is fairly
stated that the petitioner has applied in pursuance of the impugned
advertisement, but the candidature of the petitioner was rejected. It is stated
that, in the circumstances of the case, at least a direction may be issued against
the respondent no.6 to pay the salary for the period from 1.7.2010 to
30.6.2011 to the petitioner, as the petitioner has rendered services as an
Assistant Teacher during the said period.
Shri Tembhare, the learned Assistant Government Pleader
appearing on behalf of the respondent nos.1 to 3, stated that the Deputy
Director of Education has rightly rejected the approval to the appointment of
the petitioner. It is stated that the appointment of the petitioner was not made
in accordance with law and hence approval was not granted to his
appointment for the academic session 2010-2011 and onwards. It is stated
that since the management was at fault in appointing the petitioner, the
management is liable to pay the salary as per the order passed in March, 2014.
Shri Khapre, the learned counsel for the respondent no.7, which
is now in the management of the trust, states that the respondent no.7 would
not be liable to pay the salary to the petitioner for the academic year 2010-
2011. It is stated that since the management was transferred to the
respondent no.7 in the year 2013, the respondent no.7 would not be liable to
pay the arrears of salary to the petitioner.
On hearing the learned counsel for the parties and on a perusal of
the order, of which the petitioner seeks the implementation, it appears that it
would be necessary to direct the respondent no.7 to pay the unpaid salary to
the petitioner for the period from 1.7.2010 to 30.6.2011. It is necessary to
note that the respondent no.7 was a party to the proceedings before the
Deputy Director of Education. If the Deputy Director of Education had
fastened the liability of payment of salary on the management by the order of
March, 2014 and if the management was transferred in favour of the
respondent no.7 in the year 2013, after hearing the parties, it was necessary
for the respondent no.7 to have challenged the order of the Deputy Director of
Education, if it was of the view that the same was not binding on it. The order
of the Deputy Director of Education is not challenged by the respondent no.7,
till date. We, therefore, do not accept the submission made on behalf of the
respondent no.7 that the erstwhile management would be liable to pay the
salary to the petitioner from 1.7.2010 to 30.6.2011. The respondent no.7
cannot be heard to say that the earlier management has committed an
irregularity in appointing the petitioner and hence it would not pay the salary.
It would be necessary for the respondent no.7, in the circumstances of the
case, to pay the arrears of salary to the petitioner for the period from 1.7.2010
to 30.6.2011. The respondent no.7 would be liable to pay the salary, when the
respondent no.7 has entered into the shoes of the respondent no.6 before the
Deputy Director of Education passed the order directing the payment of salary,
in the month of March, 2014. Though we inclined to direct the respondent
no.7 to pay the salary of the petitioner for the aforesaid period, without
touching the aspect, whether the respondent no.7 would be entitled to recover
the same from the respondent no.6 or not, we are not inclined to grant the
prayer of the petitioner in respect of the challenge to the impugned
advertisement. The petitioner was not appointed by following the due
procedure prescribed by law in any of the academic years from the year 2005
to 2011. The petitioner, therefore, cannot effectively challenge the
advertisement. Even otherwise, the petitioner had applied in pursuance of the
advertisement during the pendency of the writ petition and was not selected.
Hence, for the reasons aforesaid, the writ petition is partly
allowed. The respondent no.7 is directed to pay the salary to the petitioner for
the academic session from 1.7.2010 to 30.6.2011 within two months.
Rule is made absolute in the aforesaid terms with no order as to
costs.
JUDGE JUDGE
Gulande, PA
C E R T I F I C A T E
"I certify that this Judgment/Order uploaded is a true and correct copy of
original signed Judgment/Order."
Uploaded by : A.S. Gulande, P.A. Uploaded on : 22.8.2016.
