Bombay High Court
Rajendra Popat Patil vs Adiwasi Seva Shikshan Sangh ... on 26 August, 2016
Bench: R.V. Ghuge
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1962 OF 2002
Rajendra s/o Popat Patil,
Age : 36 years, Occupation : Service,
R/o Dangshirvade, Taluka Sakari,
District Dhule.
...PETITIONER
-VERSUS-
1 Adiwasi Seva Shikshan Sangh,
Kalamba, Taluka Sakari,
District Dhule.
Through it's President/ Secretary.
2 The Adiwasi Khajagi Prathamik
School, Kalamba, Post Varsa,
Taluka Sakari, District Dhule.
Through it's Head Master.
3 The Education Officer (Primary),
Zilla Parishad, Dhule,
District Dhule.
4 The State of Maharashtra.
...RESPONDENTS
...
Advocate for Petitioner : Shri S.R.Barlinge.
None for Respondent Nos.1 and 2.
Advocate for Respondent No.3 : Shri S.P.Shah i/by Shri A.P.Shah.
AGP for Respondent 4 : Shri P.N.Kutti.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 26th August, 2016
Oral Judgment :
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1 The Petitioner/ Employee is aggrieved by the judgment and
order dated 22.03.2001 delivered by the School Tribunal, Nashik vide
which Appeal No.DHL-33/1997 filed by the Petitioner has been dismissed.
2 By order dated 12.01.2004, this Court recorded the categoric
statement made by the Petitioner that even after the dismissal of his
appeal, he has been continued in service by virtue of the letter dated
02.11.2002, which is marked as Exhibit "X" for identification. The
statement of the Petitioner that he is serving as an Assistant Teacher and
imparting education for students in 5th to 7th standards, has also been
taken on record. The order dated 12.01.2004 passed by this Court reads
as under:-
"Heard Mr.S.R.Barlinge, ld. Adv. for petitioner.
In this petition, the order passed by the School
Tribunal, Nasik Region, Nasik dated 22.03.2001 is
challenged. Mr.Barlinge contended that the petitioner
is working in the school run by the respondent No.1
and the respondent even after dismissal of the appeal
continued the petitioner in service as Asst. Teacher for
standard V to VII. The Headmaster, Rajeev Gandhi
Primary School has also sent the proposal for
approval of petitioner's service as Teacher on 02 nd
November, 2002.
Considering this aspect, Rule. The letter dated
02.11.2002 is taken on record and marked "X" for
identification."
3 The Petitioner has placed on record an order dated
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05.06.2001 by which the Petitioner is continued in employment even after
the dismissal of the appeal w.e.f. 11.06.2001 till 30.04.2002. The same is
taken on record and marked as "X-1" for identification.
4 I have heard the strenuous submissions of Shri Barlinge,
learned Advocate for the Petitioner and Shri Shah, learned Advocate for
Respondent No.3/ Education Officer. The learned AGP has appeared for
Respondent No.4. The office remark indicates that Respondent Nos.1 and
2, who are the Management, have been served with notice on Rule. None
has appeared on behalf of the Management on 28.07.2016, 11.08.2016,
25.08.2016 and even today.
5 Upon considering the submissions of the learned Advocates, it
appears that the only issue involved in this petition is that because the
Education Officer declined to grant approval to the service of the
Petitioner on the ground that he is not eligible to be appointed in a
primary school, that the Management terminated his services.
6 There is no dispute that the Petitioner worked from
07.01.1992 till 31.07.1997 in the concerned primary school upon
acquiring qualification of B.Sc., B.Ed.. Upon his termination, the School
Tribunal granted interim protection to the Petitioner and the Petitioner
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was continued in service. Exhibits X and X-1 indicate that he continued in
employment even till 2002. There is no dispute that he is out of
employment from 2003 for the last about 13 years and he is about 50
years of age as on date.
7 As such, the issue about eligibility on the basis of having
requisite qualification, according to Shri Barlinge, stands settled in the
light of the judgment of the Honourable Supreme Court in the matter of
the State of Maharashtra and others vs. Tukaram Tryambak Chaudhari,
(2007) (9) SCC 201. According to the Education Officer, requisite
qualification for a teacher to impart education in the primary school was
HSC, D.Ed.. The Petitioner had acquired the qualification of B.Sc., B.Ed.. It
is primarily on this ground that the Education Officer has declined to
grant approval.
8 Paragraphs 20 to 23 of the judgment of the Honourable
Supreme Court in the matter of Tukaram Chaudhari (supra) read as
under:-
"20. We have carefully considered the submissions made
on behalf of the respective parties. Having particular
regard to the fact that though standards 5 to 7 were
attached to both primary schools as well as secondary
schools, these classes in fact, represented the middle
schools for which different standards were being
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followed.
21. Conscious of such disparity in respect of teachers who
are similarly situated but were treated differently on
account of their being attached to primary schools
and/or secondary schools, the State Government
resolved to eliminate such differences and to make
provisions for trained graduate teachers to be
upgraded to a higher scale to the extent of 25% of the
posts. The said Resolution consciously refers to in
service graduate primary teachers who were eligible
for appointment to the posts in the increased pay-
scale. In fact, one of the conditions for appointment
of in service graduate primary teachers to the
converted post carrying the higher pay-scale was
that such teacher should have obtained a degree in
Arts or Science and had also obtained a degree in
education namely, B.Ed. While adopting the
aforesaid Resolution, the Government was, therefore,
fully aware of the fact there were graduate teachers
teaching in standards 5 to 7 in the primary schools.
This fact was also referred to by the Division Bench of
the High Court in its judgment under appeal. It has
been mentioned that one of the contentions raised on
behalf of writ petitioners was that in terms of
Government Resolution dated 26th October, 1982, the
petitioners were entitled to be appointed and
continued as trained teachers in B.Ed. Scale.
22. As has been pointed out by Mr. Apte, the said
Government Resolution does not appear to have been
brought to the notice of the Full Bench which
rendered its decision on the reference made to it on
the basis of the Maharashtra Rules of 1981 in respect
whereof conflicting views had been taken with regard
to the eligibility of a graduate, also holding the B.Ed.
degree to be appointed in a primary school. The
Resolution of 1979 was dealing with a situation
which was prior to the enactment of the said Rules
and which contemplated the existence and
appointment of graduate teachers in primary schools.
23. The decision rendered in Kondiba's case [(2003) 2
Mah. L.J. 432] is closer to the facts of this case. The
High Court, in our view, did not commit any error in
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following the same upon distinguishing the decision
rendered by the Full Bench on account of the said
Resolution and the Resolution dated 12th November,
2001 adopted on the basis thereof."
9 Shri Shah, learned Advocate appearing for the Education
Officer, upon going through the view taken by the Honourable Apex
Court, submits that on the date on which the Education Officer declined
approval, it was in accordance with the prescribed qualifications.
Subsequently, the Honourable Apex Court has viewed the said issue and
therefore, looking to the ratio laid down in Tukaram Chaudhari case
(supra), the Petitioner can be held to be having requisite qualifications.
10 As such, the only hurdle in the way of the Petitioner has been
removed in the light of the above. It is unfortunate that the Petitioner, who
had higher qualifications and who was selected for imparting education in
the primary school which appointment orders he had blindly accepted,
had to suffer removal from service only on account of the refusal to grant
approval on the basis of having higher qualifications. The issue of
approval is now settled by the learned Full Bench of this Court in the
matter of St.Ulai High School vs. Devendraprasad Jagannath Singh, 2007
(1) Mh.L.J. 597 (Full Bench) wherein, it has been concluded that lack of
approval can not be a ground for dispensing with the services of a teacher.
*7* 902.wp.1962.02
Thus, even if the approval is not granted, that should not be the only
reason for terminating the service of an Assistant Teacher.
11 Shri Barlinge submits that as the Petitioner in the above
unfortunate circumstances suffered unemployment despite being a
qualified teacher, has rendered him to hardships and manifest
inconvenience. By grant of full back wages, these hardships could be
reduced. With the grant of reinstatement, the Petitioner would get an
opportunity of working for the remaining 10 years which are available to
him.
12 Shri Shah has opposed the prayer for back wages on the
ground that the State Exchequer ought not to be burdened with the
payment of back wages.
13 Considering the above, this Writ Petition stands allowed by
quashing and setting aside the impugned order dated 22.03.2001 passed
by the School Tribunal. Appeal No.DHL-33/1997, therefore, stands
allowed and the Petitioner shall stand reinstated with continuity of service
from the date of his oral termination dated 01.08.1997 or from the date of
his unemployment in 2002.
*8* 902.wp.1962.02
14 Insofar as the back wages are concerned, I am inclined to
grant 25% back wages to the Petitioner in the light of the view expressed
by the Honourable Supreme Court in the matters of Gauri Shankar vs.
State of Rajasthan, 2015 (2) CLR 497 and Nicholas Piramal India Limited
v/s Hari Singh, 2015 (2) CLR 468. These back wages shall be paid by the
Management to the extent of 50% of the said amount and the remaining
50% shall be borne by the State Exchequer considering the fact that the
Institution is receiving salary grants from the Government.
15 Rule is made absolute in the above terms.
kps (RAVINDRA V. GHUGE, J.)
