Bombay High Court
Kohali Rural Education Society, ... vs The State Of Maharashtra Through ... on 24 August, 2016
Bench: V.A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.6274/2015
PETITIONERS : 1. Kohali Rural Education Society,
through its Secretary, Kohali, Tahsil
Kalmeshwar, District Nagpur.
2. Krishnarao Wankhede Vidyalaya,
through its Head Master, Kohali, Tahsil
Kalmeshwar, District Nagpur.
ig ...VERSUS...
RESPONDENTS : 1. The State of Maharashtra, through its
Secretary, Department of School Education,
Mantralaya, Mumbai - 32.
2. The Education officer (Secondary),
Zilla Parishad, Nagpur.
3. Shri Ramdas Tejram Bhoyar,
(Dead) through L.Rs.
3-a) Smt. Suman Ramdas Bhoyar
aged major, Occu - household
3-b) Shri. Avinash Ramdas Bhoyar,
aged major, Occu - Private.
3-c) Shri Laxmikant Ramdas Bhoyar,
aged major, Occu - Private.
All (3 -a) to (3-c) r/o Kohali,
Tal. Kalmeshwar, Dist. Nagpur.
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Shri B.G. Kulkarni, Advocate for petitioners
Shri I.J. Damle, AGP for respondent nos.1 and 2
Shri R.J. Mirza, Advocate for respondent nos.3-a to 3-c
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::: Uploaded on - 29/08/2016 ::: Downloaded on - 30/08/2016 00:09:29 :::
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CORAM : SMT. VASANTI A NAIK, AND
KUM. INDIRA JAIN, JJ.
DATE : 24.08.2016
ORAL JUDGMENT (PER : SMT. VASANTI A NAIK, J.)
Rule. Rule made returnable forthwith. The petition is heard
finally at the stage of admission with the consent of the learned Counsel
for the parties.
By this writ petition, the petitioner - Management seeks a
direction against the respondent no.2 - Education Officer (Secondary),
Zilla Parishad, Nagpur to release the difference of salary payable to the
respondent no.3 for the period from 5.10.2006 to 28.3.2007 and the
entire salary from 28.3.2007 to 31.8.2008 within a time frame. The
petitioners have challenged the order of the Education Officer, dated
25.8.2015 rejecting the prayer of the petitioners for sanctioning and
releasing the salary in favour of the respondent no.3, as stated herein
above.
Few facts giving rise to the petition are stated thus : -
The respondent no.3 was appointed as an Assistant Teacher
in the petitioner no.2 - School run by the petitioner no.1 - Management
in the year 1971. The petitioner no.2 receives grant-in-aid from the State
Government. The respondent no.3 was promoted to the post of
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Headmaster on 1.7.2003. By an order, dated 5.10.2006, the respondent
no.3 was placed under suspension and by an order dated 28.3.2007 his
services were terminated. The respondent no.3 attained the age of
superannuation on 31.8.2008. An appeal was filed by the respondent no.3
against the order of his termination, dated 28.3.2007 before the School
Tribunal under Section 9 of the Maharashtra Employees of Private Schools
(Conditions of Service) Regulation Act. The said appeal was dismissed by
the School Tribunal, by the judgment, dated 18.9.2013. The respondent
no.3 filed Writ Petition No.7266/2014 challenging the judgment of the
School Tribunal. The writ petition was allowed and this Court, had, by the
judgment, dated 17.4.2015 set aside the order of termination of the
respondent no.3 and directed the Management to pay the arrears of salary
to the respondent no.3. The Court, however, kept open, the issue in
respect of the reimbursement of the said amount by the petitioners from
the State exchequer. In pursuance of the said judgment, the petitioners
have paid an amount of Rs.3,00,000/- to the respondent no.3. However,
an amount of Rs.2,21,192/- is liable to be paid in terms of the judgment
in the writ petition. The petitioners had requested the respondent no.2 -
Education Officer for sanctioning and releasing the amount of difference
of salary and the regular salary, as stated herein above but the prayer of
the petitioners was rejected by the impugned communication. The
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petitioners have challenged the said communication and have sought a
direction against the respondent nos.1 and 2 to sanction and release the
salary as aforesaid in favour of the respondent no.3, at the earliest.
Shri Kulkarni, the learned Counsel for the petitioners
submitted that though this Court had allowed the writ petition filed by the
respondent no.3 and had directed the petitioners to release the salary in
his favour, the issue in regard to the reimbursement of the said salary
from the State exchequer was kept open. It is submitted that during the
period when the respondent no.3 was out of service, the Management had
not employed any other employee and the State has not paid the salary to
some other employee for the post of Headmaster. It is stated that in this
background, specially when the salary is not paid to any other employee
for the period during which the respondent no.3 was out of service, a
direction to the Education Officer to release the salary in favour of the
respondent no.3 would be necessary. The learned Counsel relied on the
judgment of the Hon'ble Supreme Court, reported in 2016 (2) ALL MR
947 (S.C.) to substantiate his submission that normally it would be the
responsibility of the State Government to bear the burden of payment of
salary in respect of the employee of a grant-in-aid school. It is stated that
though in the peculiar facts of that case, the claim of the Management for
reimbursement was rejected, in the circumstances of the present case, a
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direction could be issued to the Education Officer for releasing the salary.
It is stated that an amount of Rs.3,00,000/- could be released in favour of
the petitioners as the said amount is already paid by the petitioners to the
respondent no.3 and the remaining amount could be released in favour of
the legal heirs of the respondent no.3, as the respondent no.3 has expired.
Shri Damle, the learned Assistant Government Pleader
appearing for the respondent nos.1 and 2 has denied the claim of the
petitioners. It is stated that in the writ petition filed by the respondent
no.3, this Court had directed the Management to pay the salary to the
respondent no.3. It is stated that the Management was at fault in
terminating the services of the respondent no.3 and therefore, the State
exchequer cannot be burdened for paying the salary of the respondent
no.3. It is stated that in the judgment, reported in 2016 (2) ALL MR 947
(S.C.) and relied on by the learned Counsel for the petitioners, the facts
were distinguishable and as of a rule the liability cannot be fastened on
the State exchequer to pay the salary of a terminated employee of a
grant-in-aid school.
Shri Mirza, the learned Counsel for the respondent nos.3-a
to 3-c submitted that the respondent no.3 would be entitled to the arrears
of salary and it does not matter to the respondent no.3 whether it comes
from the petitioners or from the State exchequer. The learned Counsel,
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however, stated that in view of the judgment cited by the Counsel for the
petitioners, primarily it would be the liability of the State Government to
pay the salary in respect of a terminated employee of a grant-in-aid
school, if the State Government has not paid the salary to some other
employee, who is appointed in the place of the terminated employee.
On hearing the learned Counsel for the parties, we find that
it would be necessary to direct the respondent nos.1 and 2, in the
circumstances of the case, to release the salary in favour of the respondent
no.3. In the case before the Hon'ble Supreme Court, the liability to pay the
salary was specifically fastened on the Management and the State
Government was discharged of its liability to pay the salary. Such is not
the case here. In the case before the Hon'ble Supreme Court, the
Management had sought the salary by filing a petition and the said
petition was withdrawn before a second petition for the same relief was
filed. Though in the peculiar facts before the Hon'ble Supreme Court, the
Hon'ble Supreme Court had held that the Management would be liable to
pay the salary and the State Government would not be liable to reimburse
it to the Management, the Hon'ble Supreme Court has observed that
generally it would be for the State Government to release the salary to a
discharged employee of a grant-in-aid school. In the instant case, though
this Court had directed the Management to pay the salary to the
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respondent no.3, this Court had kept the issue in regard to the
reimbursement of the salary by the petitioners from the State exchequer,
open. The issue in regard to the payment of salary by the Management
was not foreclosed by the judgment in the writ petition. It is rightly
submitted on behalf of the petitioners that since the petitioners had not
employed any other employee in the place of the respondent no.3 as the
Headmaster and had not secured the salary for such other employee, it
would be necessary for the respondent nos.1 and 2 to pay the salary of
one employee i.e. the respondent no.3 in this case. The post on which the
respondent no.3 was appointed was a sanctioned post and his promotion
was approved. If that is so, the respondent no.2 could not have declined
to reimburse the salary to the petitioners. In the facts of this case, we are
of the view that it would be necessary for the respondent nos.1 and 2 to
pay the salary to the respondent no.3.
Hence, for the reasons aforesaid, the writ petition is allowed.
The impugned order is quashed and set aside. We hereby direct the
respondent nos.1 and 2 to release the difference of salary to the
respondent no.3-a for the period from 5.10.2006 to 28.3.2007 and the
entire salary for the period from 28.3.2007 to 31.8.2008 within a period
of two months. Since the petitioners have already paid a sum of
Rs.3,00,000/- to the respondent no.3, in pursuance of the judgment in the
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writ petition, the respondent nos.1 and 2 should release an amount of
Rs.3,00,000/- in favour of the petitioners and an amount of Rs.2,21,192/-
in favour of the respondent no.3-a, within a period of two months.
Rule is made absolute in the aforesaid terms with no order
as to costs.
JUDGE JUDGE
Wadkar
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C E R T I F I C A T E
I certify that this judgment uploaded is a true and correct
copy of original signed judgment.
Uploaded by : S.S. Wadkar, P.S. Uploaded on : 29/08/2016
