Bombay High Court
Siddheshwar Sakharam Mane vs Vidya Vikas Shikshan Prasarak ... on 19 July, 2016
Bench: R.V. Ghuge
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.9690 OF 2014
Siddheshwar Sakharam Mane,
Age : 29 years, Occupation : presently Nil,
R/o Achler, Taluka Lohara,
District Osmanabad.
...PETITIONER
-VERSUS-
1 Vidya Vikas Shikshan Prasarak
Mandal, Achler, Taluka Lohara,
District Osmanabad.
Through it's Secretary.
2 Vidya Vikas Secondary and Higher
Secondary School, Achler,
Taluka Lohara, District Osmanabad.
Through it's Headmaster.
3 The Education Officer (Secondary),
Zilla Parishad, Osmanabad.
...RESPONDENTS
...
Advocate for Petitioner : Shri Jadhavar Santosh S.
Advocate for Respondent 1 : Shri S.S.Thombre.
Advocate for Respondent 2 : Shri A.A.Mukhedkar.
AGP for Respondent 3 : Shri S.G.Karlekar.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 19th July, 2016
Oral Judgment :
1 Rule. Rule made returnable forthwith and heard finally by the
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consent of the parties.
2 The Petitioner is aggrieved by the judgment and order dated
28.08.2014 by which his Appeal No.38/2013 challenging his termination
dated 09.11.2011, has been dismissed.
3 The contentions of the Petitioner can be summarized as
follows:-
(a) A circular dated 1.11.2001 has been issued by the Desk
Officer of the Ministry of Education, State of Maharashtra,
informing the Director of Education (Secondary and Higher
Secondary), that in the light of the Circular dated 28.8.2001,
in the event, there is no School Committee in existence, the
Headmaster, who is the Member /Secretary of the School
Committee shall follow the norms and procedure for
appointment of Assistant Teacher (Shikshan Sevak) and
which can be done under his signature for a period of three
years.
(b) The Headmaster of the respondent School sought permission
by communication dated 30.6.2011 from the Education
Officer for filling in vacant posts.
(c) By communication dated 26.7.2011, the Head Master sought
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approval to the advertisement.
(d) By communication dated 23.8.2011, the Headmaster sought
approval to the roster and the advertisement. Similar
communication is also dated 29.9.2011.
(e) An advertisement was published on 5.10.2011, calling for
applications for the post of Assistant Teachers.
(f) The chart dated 14.10.2011 indicates the persons, who were
present for the interviews, bearing the signature of the
Headmaster.
(g) A resolution is passed on 17.10.2011 under the signature of
the Headmaster, thereby, selecting the petitioner as well as
Shri Jaihind Balbhim Waghmare and Shri Atul Bhimashankar
Jadhav.
(h) An appointment order dated 7.10.2011 was issued to the
petitioner under the signature of the Headmaster appointing
him as an Assistant Teacher on temporary basis for a period of
three years from 20.10.2011 till 19.10.2014.
(i) A bond dated 17.10.2011 was executed by the petitioner in
view of the condition set out in the appointment order.
(j) The joining report dated 20.10.2011 was filed by the
petitioner which was received and acknowledged by the
Headmaster.
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(k) The petitioner was terminated orally on 9.11.2011 on the 20 th
day of his employment.
(l) Appeal No. 16 of 2012 was preferred by the petitioner.
(m) The respondent / management submitted its detailed Written
Statement dated 3.10.2013 under the signature of the
Headmaster Shri Someshwar Malakappa Gurav, who
succeeded the earlier Headmaster on his retirement, who had
appointed the petitioner.
(n) The Education Officer stated before the School Tribunal that
he has no record available with regard to the petitioner's
appointment since the management did not submit any
document either to communicate his appointment or for
seeking approval to his appointment.
4 In the light of the above, this Court had directed the
Education Officer (Secondary), Zilla Parishad, Osmanabad to file a specific
affidavit disclosing the details of appointments of two employees, namely,
Jaihind Baliram Waghmare and Atul Bhimshankar Jadhav, who were
stated to be appointed under the same advertisement under which the
Petitioner was appointed.
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5 An affidavit has been filed by the Education Officer on
11.08.2015. Relevant paragraphs 9 to 11 read as under:-
"9. I say and submit that, in the present matter, the
Head Master/ so called Management has not
obtained the NOC, verified roster from the B.C. Cell,
in spite of that, it appears from the letter dated
29.10.2011 that the interviews are conducted by
the Head Master/ so called Management. Hereto
annexed and marked as Exhibit R-3 is the copy of
letter dated 29.10.2011.
10. I say and submit that, the record in respect of
appointment of Shri Jayhind Baliram Waghmare
and Atul Bhimshankar Jadhav, as Asst. Teacher is
not available in the office of the Deponent. However,
after obtaining the record from the Head Master of
Vidyavikas Secondary and Higher Secondary
School, at Achler, Tq.Lohara, Dist.Osmanabad, it is
revealed that, Shri Jayhind Baliram Waghmare was
appointed for the period 08.11.2011 to 07.11.2014
but it is reveals from the muster roll maintained in
the said school transpires that J.B.Waghmare had
not been joined as per the order. It is further
submitted that, Shri Waghmare was working in the
said school on the division which is on permanent
non grant basis in Higher Secondary Section for
Marathi subject and on clock hour basis from
14.06.2010 to 30.04.2012. The said fact is also
revealed from the muster roll of teachers.
11. I say and submit that, there is no appointment
order of Shri Atul Bhimashankar Jadhav for the
period of 20.10.2011 to 30.04.2012. It is also
further submitted that, Shri Jadhav was working in
said school on the division which is on permanent
non grant basis in Higher Secondary Section for
political science subject on clock hour basis from
14.06.2010 to 30.04.2012. However, the said fact
reveals from the muster roll of teachers maintained
by the School."
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6 Shri Thombre and Shri Mukhedkar, learned Advocates for the
Respondents/ Management and Headmaster respectively, have strenuously
opposed this petition. The contention is that the father of the Petitioner,
who was earlier working as Clerk with the Institution, surreptitiously
entered the name of the Petitioner and thereby, created the record in the
muster roll. This was considered by the School Tribunal and based on the
same, the appeal was dismissed.
The affidavit in reply filed by the Education Officer, which is
reproduced as above, would indicate that the Petitioner was inducted after
Mr.Waghmare had joined. There is, however, no evidence as regards the
working of Mr.A.B.Jadhav. The Education Officer, however, submits that
Mr.Jadhav was working from 14.06.2010 to 30.04.2012.
8 In the light of the above, I deem it proper to remit Appeal
No.38/2013 to the School Tribunal, Solapur.
9 This Writ Petition is, therefore, partly allowed only to the
extent of setting aside the impugned judgment of the School Tribunal
dated 28.08.2014 and by remanding Appeal No.38/2013 to the School
Tribunal, Solapur under the following directions:-
(a) The Education Officer (Secondary), Zilla Parishad,
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Osmanabad shall file an affidavit before the School Tribunal
setting forth the circumstances in which the Petitioner was
appointed.
(b) The affidavit in reply filed by the Education Officer in this
Court on 11.08.2015 shall be placed before the School
Tribunal.
(c) The School Tribunal shall, therefore, consider whether, the
Headmaster was authorized by the Management of the
Institution to appoint the Petitioner pursuant to the
advertisement dated 05.10.2011.
(d) The School Tribunal shall consider whether, the dispute
between the Management, meaning thereby that existence of
two factions in the Management, would empower the
Headmaster to issue the appointment orders.
(e) The School Tribunal shall also consider whether, the service
of the Petitioner/ original Appellant from 20.10.2011 till
09.11.2011 (19 days) would create any right for
reinstatement, continuity of service and back-wages.
(f) All the litigating sides are permitted to place additional
documents, if any, before the School Tribunal.
(g) The School Tribunal shall decide the appeal as expeditiously
as possible and preferably on or before 31st March, 2017.
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10 It be noted that since the above aspects and the affidavit of
the Education Officer has brought forth new facts, that the appeal has
been remitted to the School Tribunal. As such, this Court has, therefore,
not arrived at any conclusion as regards the respective contentions of the
litigating sides and the merits of the matter. Needless to state, all
contentions of the litigating sides are, therefore, kept open.
Rule is made partly absolute in the above terms.
kps (RAVINDRA V. GHUGE, J.)
