Bombay High Court
Parshuram Laxman Dudhe vs The State Of Mah And Ors on 25 August, 2016
Bench: R.V. Ghuge
WP/8057/2009
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.8057 OF 2009
Parshuram Laxman Dudhe,
Age 42 years, Occ. Service
R/o Kharwad, Tq. Kalamnuri,
District Hingoli. ..Petitioner
Versus
1. The State of Maharashtra
Through the Secretary,
Ministry of Education,
Mantralaya, Bombay.
2. The President,
Trisharan Shikshan
Prasarak Mandal,
Tq. Kalamnuri,
District Hingoli.
3. The Head Master,
Hiraman Khandre Vidyalaya,
Kharwad, Tq. Kalamnuri,
District Hingoli. ..Respondents
...
Shri K.H.Dhuldhwaj, Advocate for the petitioner
Shri S.D.Kaldate, AGP for the respondent 1
...
CORAM : RAVINDRA V. GHUGE, J.)
Dated: August 25, 2016
...
ORAL JUDGMENT:-
1. The petitioner is aggrieved by the judgment and order dated
07/09/2007 delivered by the School Tribunal, Latur, by which his
Appeal No.81/2006 has been dismissed.
WP/8057/2009
2. By order dated 06/07/2010, this petition was admitted.
3. Shri Dhuldhwaj, learned Advocate for the petitioner addressed
this Court on 28/04/2016 when the matter was heard finally. He
completed his submissions on the same day. Since Shri Adkine,
learned Advocate for the Management did not appear in the matter
even at the second call, it was adjourned to 04/05/2016 as part
heard.
4.
On 04/05/2016 Shri Adkine commenced his submissions and
prayed for time till 09/05/2016 and agreed to address the Court on
09/05/2016 since this Court was available to take up regular matters
in a special drive.
5. On 09/05/2016, Shri Adkine did not appear even at the second
call. The matter was therefore adjourned to 12/05/2016. Even on
12/05/2016, Shri Adkine did not appear before the Court. Even
today, he has not appeared.
6. In the light of the above, I am deciding this petition based on
the submissions of the petitioner and the affidavit in reply filed by
the In-charge Education Officer (Secondary) Z.P. Hingoli dated
19/01/2010.
WP/8057/2009
7. The petitioner has contended in the petition as under :-
[a] He was appointed on 14/06/1994 as an "Untrained
Teacher" by the respondent/Management.
[b] On 19/06/1996, he was issued with a certificate thereby
recommending him for in service postal D.Ed.
[c] In1998, he completed his B.Ed.
[d] By appointment order dated 01/09/1998, he was again
inducted in service as an "Assistant Teacher" for the
academic year 1998-1999.
[e] The President of the Institution issued an Experience
Certificate on 29/04/1999 stating therein that the
petitioner is working since 15/06/1994.
[f] He was orally refused employment on 29/04/1999.
[g] The Management published an advertisement in
"Marathwada Sathi" on 10/06/1999 calling for
applications and the petitioner realized that he has
been orally terminated from service.
[h] The Management has not filed a written statement
before the Tribunal, but has taken a stand stating that
the petitioner had abandoned employment from
29/04/1999.
[i] Stand of the Management is unsustainable since the
Experience certificate is itself dated 29/04/1999
thereby indicating that the petitioner was available in
the school.
[j] Though no approval has been granted to the service of
the petitioner, lack of approval cannot be a ground for
terminating the services of an employee.
[k] Reliance has been placed upon Rule 6 and Rule 8(2) of
the M.E.P.S.Rules.
WP/8057/2009
[l] The Education Officer has filed a written statement
contending that there is no vacancy and the petitioner
cannot be accommodated.
8. Shri Dhuldhwaj, learned Advocate for the petitioner has relied
upon the following cases:-
(1) Progressive Education Society Vs. Rajendra and another -
(2008) 3 SCC 310,
(2) Ashok Pandurang Janjal Vs. Secretary, Tulasabai Kawal
Vidyalaya - 2006 (4) Mh.L.J. 759,
(3) Matoshri Ramabai Ambedkar Vidyarthi Vs.
Bharat D. Hambir - 2009 (2) Mh.L.J. 121,
(4) Progressive Education Society Vs. Nitin Krishnarao
Nimbalkar - 2006 (4) Mh.L.J. 747,
(5) Perwez Khajuddin Kalal Vs. State of Maharashtra -
2008 (5) Mh. L. J.523,
(6) Madhukar Namdeo Ranbhour Vs. The State of
Maharashtra - Writ Petition No.1758 of 2004 (Bombay),
dated 22.3.2004 and
(7) Buckingham and Carnatic Co. Ltd. Vs. Venkatiah
& another - AIR 1964 SC 1272.
9. The Management has not filed an affidavit in reply in these
proceedings though the matter pertains to the year 2009. Even
before the Tribunal, no written statement was filed. An oral stand
has been taken that the petitioner has abandoned employment.
10. The learned AGP has placed reliance on the affidavit in reply
filed and submits that the Management never submitted any proposal
WP/8057/2009
for seeking approval from his Office. Therefore, there is no occasion
for the Education Officer to grant any approval to the appointment of
the petitioner. As on date, there is no vacancy on grant-in-aid
division of the said school.
11. Considering the effect of Rule 6 of the MEPS Rules, the
petitioner has acquired the B.Ed. qualification in 1998 and as such
there could not have been any termination on the ground of lack of
requisite qualification.
ig It is apparent that he was appointed on
14/06/1994 as an Untrained Teacher and there has been no
termination before he completed his B.Ed. since his case was
recommended for acquiring D.Ed. qualifications while being in service
and pursuant to the same, he has acquired the said qualifications.
12. Rule 8(2) mandates that after the appointments of the
teaching and non teaching posts have been made, the names and
particulars of qualifications and experience of the persons so
appointed shall be forwarded within a fortnight from the date of each
of such appointment to the Education Officer and in the case of
Jr.College of Education to the Deputy Director. The Management has
therefore neither complied with Rule 8(2), nor has the Management
forwarded the proposal of the petitioner to the Education Officer or
the competent authority for seeking approval. It is stated by the
petitioner that he was not paid any salary from 14/06/1994 till
WP/8057/2009
29/04/1999. There is no dispute that the petitioner is 50 years old
today and is out of employment for more than 17 years.
13. Considering the above and that an experience certificate was
issued by the management on 24.9.1999, there cannot be an
abandonment of service from the said date, as per the stand taken.
14. Considering the above recorded peculiar facts, I find it
apparent that the management, after appointing the petitioner, did
not comply with the provisions of the MEPS Act and the Rules
thereunder, so as to seek an approval and thereby regularize the
petitioner. The management, therefore, needs to be penalised for
this conduct. As stated by the learned AGP, on the basis of the
affidavit, since there is no vacancy available and as the petitioner
had worked for about 5 years and is out of employment for 17 years,
there cannot be reinstatement in service.
15. I am, therefore, directing the management / respondent No.2
i.e. Trisharan Shikshan Prasarak Mandal, Kalamnuri, District Hingoli to
pay compensation to the petitioner in the form of six months salary,
payable to an Assistant Teacher today, along with allowances under
Section 11(2)(e) of the MEPS Act, which reads as under:-
"Section 11 - Powers of Tribunal give appropriate reliefs
and directions.
WP/8057/2009
(1) ............................
(2) Where the Tribunal after, giving reasonable
opportunity to both parties of being heard, decides in
any appeal that the order of dismissal, removal,
otherwise termination of service or reduction in rank
was in contravention of any law (including any rules
made under this Act), contract or conditions of service
for the time being in force or was otherwise illegal or
improper, the Tribunal may set aside the order of the
management, partially or wholly, and direct the
Management,-
(a) .............................
(b) .............................
(c) .............................
(d) .............................
(e) where it is decided not to reinstate the
employee or in any other appropriate case, [1]
[to give to the employee twelve months' salary
(pay and allowances, if any) if he has been in the
service of the school for ten years or more and
six months salary (pay and allowances, if any) if
he has been in service of the school for less than
ten years], by way of compensation, regard being
had to loss of employment and possibility of
getting or not getting suitable employment
thereafter, as it may specify; or
(f) .............................. "
16. Said compensation shall be paid in lieu of reinstatement and
other benefits within a period of twelve weeks from today, failing
WP/8057/2009
which the said amount shall carry interest at the rate of 6 per cent
from the date of the impugned judgment - 7.9.2007.
17. So also, the petitioner is at liberty to approach the competent
Education Officer, for staking a claim for unpaid wages, if any.
18. This petition is, therefore, partly allowed and Rule is made
partly absolute in the above terms.
ig (RAVINDRA V. GHUGE, J.)
...
akl/d
