Bombay High Court
Baburao Dondiram Singapure & Anr vs The Education Officer Z P Latur & ... on 20 December, 2016
Bench: R.V. Ghuge
WP/7579/2005
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7579 OF 2005
WITH
CIVIL APPLICATION NO.14162/2016
Waman Gundappa Biradar
Age 46 years, Occ. Asstt. Teacher,
R/o Chilghali, Tq. Udgir,
District Latur at present
Residing at Selu, Tq. Ausa,
District Latur. ..Petitioner
Versus
1. Shri Ganesh Shikshan Prasarak
Mandal, at Selu, Tq. Ausa,
Through its President
Baburao Dhondiram Singapure,
R/o Selu, Tq. Ausa, Dist. Latur.
2. The Head Master
Shri Gangadhar Tulsiram Dande
of Shri Ganesh Vidyalaya (School),
At Selu, Tq. Ausa, Dist. Latur.
3. Angad Ganpatrao More
Age major, Occ. Secretary
of Shri Ganesh Shikshan Prasarak
Mandal, Selu, Tq. Ausa,
District Latur.
4. Suhas Keshavrao Kulkarni
age 47 years, Occ. Nil
R/o C/o The Head Master
Shri Gangadhar Tulsiram Dande
of Shri Ganesh Vidyalaya (School),
At Selu, Tq. Ausa, Dist. Latur.
5. The Education Officer (S),
Zilla Parishad, Latur. ..Respondents
WITH
WRIT PETITION NO. 4237 OF 2006
1. Baburao Dondiram Singapure,
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WP/7579/2005
2
Age 58 years, Occ. Agriculture
and President Shri Ganesh Shikshan
Prasarak Mandal, at Selu, Tq. Ausa,
District Latur.
2. Shri Gangadhar Tulsiram Dande
Age 59 years, Occ. Agriculture and
The Head Master
Shri Gangadhar Tulsiram Dande
of Shri Ganesh Vidyalaya (School),
At Selu, Tq. Ausa, Dist. Latur. ..Petitioners
Versus
1. The Education Officer (S),
Zilla Parishad, Latur.
2. Angad Ganpatrao More
Age major, Occ. Secretary
of Shri Ganesh Shikshan Prasarak
Mandal, Selu, Tq. Ausa,
District Latur.
3. Suhas Keshavrao Kulkarni
age 47 years, Occ. Nil
R/o C/o Shri Ganesh Vidyalaya (School),
At Selu, Tq. Ausa, Dist. Latur.
4. Waman Gundappa Biradar
Age 46 years, Occ. Asstt. Teacher,
R/o Chilghali, Tq. Udgir,
District Latur at present
Residing at Selu, Tq. Ausa,
District Latur. ..Respondents
...
Advocate for Petitioners : Shri N.P.Patil Jamalpurkar
Advocate for Respondent 3 : Shri V.D.Salunke
Advocate for Respondent 4 : Shri R.B.Kale
AGP for Respondent 5 : Shri N.T.Bhagat,
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: December 20, 2016
...
WP/7579/2005
ORAL JUDGMENT :-
1. The petitioner in the first petition is the original appellant,
who has challenged his termination dated 15.9.1992 on the ground
that his approval has come to an end after the end of the academic
year 1991-92. His appeal is dismissed by the impugned judgment
dated 17.10.2005.
2. The petitioners in the second petition claimed to be the
President and Head Master of the Education Society. Both have
challenged the same judgment of the School Tribunal, dated
17.10.2005, by which, No.28 of 1992 (renumbered as Appeal No.44 of
2004 upon being transferred) has been dismissed.
3. For the sake of clarity, the petitioner in the first petition
would be referred to as the original appellant. The petitioner in the
second petition shall be referred to as the "President" . Shri Angad
Ganpatrao Mane, respondent in both the petitions, who has claimed
to be the Secretary of the institution, shall be referred to as the
"Secretary". The employee who sought intervention in the Appeal of
1992 in 2004 before the Tribunal, would be referred to as "Shri
Kulkarni" by his name.
6. The appellant as well as the President have challenged the
WP/7579/2005
judgment of the Tribunal dated 17.10.2005.
7. The contentions of the appellant can be summarized as
under:-
(a) The appellant was earlier working with Rayate Vibhag
High School prior to his appointment in the School at issue.
(b)
Pursuant to an advertisement, the appellant applied
and was appointed as an Assistant Teacher by the School
Committee in Shri Ganesh Vidhyalaya, Selu by order dated
12.8.1991.
(c) The resolution passed by the School Committee on
11.8.1991 and which is signed by the Members of the School
Committee indicates that that the School Committee resolved
to appoint the appellant.
(d) The subject "Continuation Order" mentioned in the
order of appointment dated 12.8.1991 was corrected by the
President and the Head Master by communication dated
1.3.1994.
(e) There are two groups in the management of the
WP/7579/2005
education institution and the two groups are litigating for
supremacy.
(f) By order dated 14.1.1993, in Writ Petition No.2177 of
1992 to which the President and the Secretary are a party, this
Court directed the Board of Trustees whose election was
challenged in Appeal No.18 of 1992, that they would not make
any fresh appointments and would not deal with the
immovable properties of the trust or purchase properties till
the final disposal of the appeal.
(g) Approval to the appointment of the appellant was
granted by the Education Officer.
(h) By order dated 15.5.1992, the service of the appellant
was brought to an end only for the reason that his approval
was for one academic year and as the academic year has come
to an end, he is being relieved from service.
(i) The termination order of the appellant has been signed
by the Secretary, who is the respondent in these matters. The
President has not signed it and there is no resolution to
discontinue the appellant.
WP/7579/2005
(j) By interim relief granted by the Tribunal, dated
1.7.1992, the appellant was continued in service.
(k) He continued to discharge his duties and was in service
till the appeal was dismissed by the School Tribunal on
17.10.2005.
(l) After dismissal of the appeal, a formal order of
termination was not issued by the management.
(m) The appellant filed Writ Petition No.7579 of 2005 and
this Court, by order dated 18.11.2005, granted status quo as
on date.
(n) Pursuant to the said interim relief the appellant
continued in employment and this Court by order dated
1.2.2006 admitted the petition and continued the interim
relief.
(o) On 30.6.2016 the appellant has attained the age of
superannuation and has retired from service.
(p) There is no whisper in the order of termination that the
appellant was not qualified or that the appellant was never
WP/7579/2005
appointed or that the appellant was appointed during the
temporary absence of Shri Kulkarni.
(q) The School Tribunal without considering the above facts
came to a conclusion that the appellant had caused
fabrication of documents along with the President and the
Head Master and therefore, the appeal deserves to be
dismissed.
8.
Shri Salunke, learned Advocate appearing on behalf of the
respondent / Secretary in both these matters has submitted as
under:-
(a) It is disputed that because of the interim orders dated
1.7.1992 and further order of status quo granted by this Court
on 28.11.2005, the appellant was continued in service and he
has retired on 30.6.2016.
(b) The appellant was never appointed legally.
(c) The appointment order dated 12.8.1991 is not an
appointment order but is an illegal continuation order.
(d) The President and the Head Master have supported the
WP/7579/2005
appellant in Appeal No.98 of 1992.
(e) Only to support the appellant, the second Writ Petition
No.4237 of 2006 has been filed by the President.
(f) Shri Kulkarni was appointed as Assistant Teacher in 1989
and was approved for the academic years 1989 till 1991.
(g)
Shri Salunke denies that there was any interim relief
after the dismissal of the appeal and this Court has granted
the status quo which has been wrongly interpreted and the
appellant was continued in service.
(h) Shri Kulkarni was sent for training under the sanction of
the Education Officer.
(i) The name of the appellant appeared in the approval
order for the academic year 1991-92 issued by the Education
Officer.
(j) At best, the appellant can be said to be appointed in
place of Shri Kulkarni.
(k) The President prepared the appointment order by
WP/7579/2005
forgery.
(l) The Tribunal has rightly concluded that the
appointment of the appellant was not on a permanent vacant
post and since the appellant acted in collusion with the
President and the Education Officer, his appeal was rightly
dismissed.
(m)
Though the appellant has retired, considering the
forgery, he should not be granted retiral benefits.
9. Shri Kale, learned Advocate appearing on behalf of Shri
Kulkarni / respondent who has been appointed in 1989 has adopted
the arguments and submissions of Shri Salunke. He has further
submitted that though he intervened in Appeal No.28 of 1992 in 2004
before the Tribunal, he is entitled for continuation in service from
1991 onwards with all incidental and consequential benefits.
10. I have considered the submissions of the learned Advocates
and have reproduced the same herein above in order to avoid
repetition. I have gone through the record as is available with the
assistance of the learned Advocates.
11. This case is yet another classic example of a dispute between
WP/7579/2005
two groups of purported office bearers of an educational institution
which appears to have seriously affected atleast two persons i.e. the
appellant and Shri Kulkarni. In the battle for gaining control of the
educational institution and the trust, it appears that both these
Teachers have suffered the brunt of such a dispute.
12. It appears that the appellant was earlier working in an another
institution and upon considering the possibility of acquiring
employment at his home town, he had applied. The order dated
12.8.1991, issued by the School Committee of Shri Ganesh
Vidhyalaya, Selu indicates that he would be treated as being
continued in employment taking into account his earlier service with
Rayate Vibhag High School from 25.6.1985 till 19.6.1991. The said
order has been subsequently corrected by order dated 1.3.1992.
13. Rule 9(2) of the Maharashtra Employees of Private Schools
(Conditions of Service) Rules, 1981 ("MEPS Rules" for short) reads as
under:-
"9. Appointment of staff.
(2) Appointments of teaching staff (other than the Head
and Assistant Head) and those of non-teaching staff in a school
shall be made by the School Committee;
Provided that, appointments in leave vacancies of a
WP/7579/2005
short duration not exceeding three months, may be made by
the Head, if so authorised by the School Committee."
14. The above Rule, therefore, indicates that the teaching staff as
well as the non teaching staff in a school can be appointed by the
School Committee, barring the appointment of the Head and the
Assistant Head. The signatures of the School Committee along with
the President appear on the appointment order. Similarly, signatures
of five persons also appear along with the signature of the President
in the Resolution dated 11.12.1991 which was passed by the School
Committee for appointing the appellant. No doubt there are two
groups amongst the management and each group alleges and
attributes illegalities and illegal actions to the other group. The fact
remains that the Education Officer has approved the appointment of
the appellant.
15. By scrutinizing these documents, I have gone through the
observations of the School Tribunal in paragraph No.20 of the
impugned order, which are as under:-
"20. On taking into consideration the rival submissions of
both the parties and on perusal of the documents on the
record, it is seen that the appellant with respondent no.1 and
2 in collusion have committed illegalities in making his
WP/7579/2005
appointment absolutely illegal and that to in place of the
respondent no.4 and further is collusion with the E.O.
obtained approval and by virtue of the court order the
respondent 1 and 2 having positive knowledge about their
illegalities and by fabrication of documents have made
wrongful gains by withdrawing salary bills in the name of the
appellant and thereby caused wrongful loss to the state
exchequer and wrongful gain to themselves. They are
therefore, liable to make good the loss caused to the state
Exchequer and the said amount be recovered personally from
the president of the respondent no.1 viz. Shingnapure, the
respondent no.2 Head Master and the Education officer, who
at the relevant time granted approval to the illegal
appointment of the appellant. It is further seen that the
respondent no.1 and 2 unscrupulously deprived the respondent
no.4 from the legitimate claim on the post of Asstt. Teacher,
who was otherwise entitled to get all the benefits as per rules
and regulations."
16. If the said conclusions are scrutinized, I do not find that the
Tribunal has discussed the effect of any document or the appearance
of any document to be a forged document or an act of forgery. The
reproduced paragraph above indicates that the Tribunal has got
carried away by the submissions of the Secretary that illegalities
WP/7579/2005
have been committed. The documents considered by me herein
above, in the light of Rule 9(2) which empowers the School
Committee to appoint teaching staff, have not been considered by
the Tribunal in any manner. In my view, before coming to such a
grave and serious conclusion that documents have been fabricated,
mere observations without referring to the documents cannot be
termed to be a correct approach since such conclusions can have
devastating effect on the persons who are alleged to have committed
illegalities. For these reasons, I find that the conclusion of the
Tribunal in paragraph No.20 needs to be set aside.
17. In so far as the termination of the appellant is concerned, the
Secretary / respondent No.3 in the first petition, who is respondent
No2. in the second petition, has signed and issued the order of
termination dated 15.5.1992 in vacation. Notwithstanding that the
order has been issued in vacation under his solitary signature, the
fact remains that the only reason set out in the order of termination
is that the approval for the academic year granted to the appellant
has come to an end. No other reason is cited, much less, that the
appellant was illegally appointed or that he was secretively inducted
in service or that he was working in place of Shri Kulkarni. This
termination order, therefore, is required to be tested on the ground
on which it has been issued. Fresh grounds cannot be inserted in the
order of termination.
WP/7579/2005
18. The learned Full Bench of this Court in the matter of St. Ulai
High School and another Vs. Devendraprasad Jagannath Singh and
others [2007 (1) Mh.L.J. 597], has concluded that lack of approval
cannot be a ground for termination. The law is thus settled that lack
of approval may not necessarily call for the termination of an
employee.
19.
Considering the above, I find that this petition preferred by
the appellant deserves to be allowed and consequentially the
petition filed by the President and the Head Master would also stand
allowed.
20. In so far as the retiral benefits of the appellant are concerned,
it cannot be ignored that he has been reinstated in service by the
interim order of the Tribunal and he has retired on 30.6.2016. It is
submitted for the appellant that he is suffering from Cancer and is
unfortunately in the terminal stage.
21. In the light of the above, both these petitions are allowed.
The impugned judgment of the School Tribunal dated 17.10.2005
stands quashed and set aside and Appeal No.28 of 1992 (New Number
44 of 2004) stands allowed. The appellant would, therefore, be
entitled for retiral and pensionery benefits in accordance with Rules.
WP/7579/2005
22. Before parting with these matters, I find it appropriate to
refer to the plight of Shri Suhas Keshavrao Kulkarni. He had
proceeded for training in 1991 and it appears that owing to the
internal dispute in between the management, he did not find himself
in employment after he returned from training. Ordinarily he should
have challenged his alleged termination or oral refusal of work.
However, he has done neither and has contended before this Court
that he should be reinstated in service or he should be deemed to be
continued in service from 1991 till he has attained the age of
superannuation. Since such a prayer has been made before this
Court and there is no proceeding before this Court to deal with the
said prayer, it can only be left to Shri Kulkarni to approach the
management for the consideration of his claim.
23. Pending Civil Application does not survive and stands disposed
off.
24. Rule is made absolute in above terms.
( RAVINDRA V. GHUGE, J. )
...
akl/d
