Shivaji Education Society And Ors vs Tejro Sambhaji Ghuge And Ors
2016 Latest Caselaw 4153 Bom

                                            1




                                                                             
             IN THE HIGH COURT OF JUDICATURE OF BOMBAY   
                         BENCH AT AURANGABAD




                                                     
                            WRIT PETITION NO.5144 OF 2000

    1. Shivaji Education Society,
        Nava, Tq. and Dist. Jalna,




                                                    
        Through its Secretary,
        Mr.Vithal Bhaurao Mhaske,
        Age-50 years, 
        R/o Nava, Tq. and Dist. Jalna,




                                           
    2. Vithal S/o Waghuji Tekale,

        Maharaj High School,
                              
        The Head Master, Rangnath 

        Waghrool (J), Tq. and Dist.Jalna.
                                                                 PETITIONERS
                             
    VERSUS 
    1. Tejrao S/o Sambhaji Ghuge,
        Age-36 years, Occu-Service,
        R/o Village Waghrool (J),
      

        At present Deolgaon Raja,
        Tal.Deolgaon Raja, Dist.Buldhana,
   



    2. The Education Officer (Secondary),
        Zilla Parishad, Jalna,
        District Jalna,





    3. The State of Maharashtra                                  RESPONDENTS 

Mr.B.A.Dhengle, Advocate for the petitioner. Mr.S.W.Munde, AGP for respondent Nos. 2 and 3. Mr.R.K.Jadhavar, Advocate for respondent No.1.

( CORAM : RAVINDRA V. GHUGE, J.) DATE : 26/07/2016

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally by the

khs/JULY 2016/5144-d

consent of the parties.

2. The petitioner has challenged the judgment dated 23/11/2000

delivered by the School Tribunal, Aurangabad by which Appeal

No.115/1997, filed by the respondent/employee, has been allowed.

His termination is set aside and he has been granted reinstatement

with continuity and full back wages.

3. While admitting this matter, this Court had stayed the

impugned judgment and as a consequence of which, the respondent/

employee is out of employment for the past more than 19 years.

4. I have heard the learned advocates for the respective sides at

length.

5. The grievance of the petitioner / Management is that the

petitioner was appointed for one academic year by order dated

01/07/1994 against a temporary vacancy. He was never continued

in employment by way of a single appointment order. After conclusion

of each academic year from 1994, he has been engaged on one year

basis. The last appointment order is dated 17/06/1996 and he has

been terminated on 18/06/1997.

khs/JULY 2016/5144-d

6. The Management has further submitted that temporary

approval was granted by the Education Officer only for one academic

year 1996-97. The respondent has not completed his D.Ed. and

therefore was not entitled for continuous service, much less with full

back wages.

7. Learned Advocate for respondent no.1/employee points out

from the order dated 01/07/1994 that he was not appointed for one

academic year, but for an unspecified period. There was a natural

growth in the school. As a consequence of which there was increase

in one division of the 9th standard. He was given annual appointment

orders only to create a picture that he was not appointed on regular

basis.

8. It is further submitted that the petitioners had recommended

the case of the respondent to the Yeshwantrao Chavan Open

University (YCOU) as an "in service candidate" for completing his

'vacation B.Ed.' Course. He was admitted in the said course in 1995

and he completed his B.Ed. in 1997. Yet he has been terminated

without compliance of Rule 28 and therefore the termination is bad

in law. So also since he had completed 3 years in continuous

employment, he is deemed to have become a permanent employee in

khs/JULY 2016/5144-d

the light of Section 5 of the M.E.P.S. Act and especially in the light of

the fact that he has completed his B.Ed. as an "in service candidate".

9. The School Tribunal, while dealing with the appeal preferred by

the employee, has concluded that he has worked continuously for 3

years as an "Assistant Teacher" and by virtue of the appointment

orders, he is deemed permanent in service.

10. I find from the appointment orders that by the first

appointment letter, the respondent/employee was appointed w.e.f.

01/07/1994 until further orders. It is specifically mentioned that

because there was a natural growth in the school, that he was

appointed. It is not the case of the petitioner/Management that the

said school thereafter suffered a fall in the strength of students and

therefore the said post has been abolished.

11. The appointment orders indicate that the Management had

tried to project that the appointment was as against a vacancy. This

clause of the appointment order has neither been pressed nor

justified by the petitioner. As such, it is apparent that the

Management had intentionally entered the said clause so as to defeat

the claim of the employee.

khs/JULY 2016/5144-d

12. The petitioner has relied upon the judgment of this Court in

the matter of Dr.S.R.Ambedkar Samiti and another Vs.

Ku.M.L.Lolkar, 2000(4) Mh.L.J. 507. This Court has observed in

paragraph Nos.6 and 7 of the judgment as under :-

"6. On the other hand, the learned Counsel for respondent No. 1

contends that under Rule 28(1) it was incumbent upon the petitioner to give one month's notice to respondent No. 1 and

failure to do so, by not giving such a notice, would vitiated the action of the petitioner. It is further contended that the

respondent No. 1 was continuously in service from year 1984-85 except small breaks during the vacations and she was reappointed in the successive academic years. It is further

contended that during this intervening period, the petitioners

permitted respondent No. 1 to pursue D.Ed. Course during the vacation, so as to enable her to acquire requisite qualification for being appointed as a Trained Teacher. Reference has been made

to the policy laid down by the State Government in the circulars that services of untrained teacher shall not be terminated and instead they should be permitted to pursue D.Ed. Course so as

to acquire necessary qualification within the prescribed period. It is therefore stated that the respondent No. 1 was one such employee, who had pursued the course to acquire the necessary qualification and was successful in passing the examination in March 1989. It is therefore submitted that since the respondent No. 1 had acquired the necessary qualification in March 1989,

khs/JULY 2016/5144-d

there was no reason for the petitioner to terminate the services of the respondent No. 1 on any count. In support of this

submission reliance has been placed on the decision of the Division Bench of this Court Baburao v. State of Maharashtra, to contend that even if initial appointment is on a temporary basis,

but if the same is continued on year to year basis, that would amount to appointment made on probation against the permanent vacancy and such an employee can not be deprived

of being appointed on a permanent basis within the meaning of

section 5(3) of the Act.

7. After having considering the rival submissions I am of the

view that the Tribunal has rightly held that the respondent No. 1 sent letter requesting for extending the medical leave on 6-5-89 which was duly supported by medical certificate. The Tribunal

was, therefore, right in concluding that there was presumption

that the said letter had reached the petitioners herein. There is no evidence brought on record except bare denial by the petitioners about the service of the notice. No attempt was made

even to examine any witness or assert that the letter was not received though sent by under certificate of posting. Ordinarily, the letter sent by under certificate of posting on the known address of the addressee, it could be presumed that the same

has reached the addressee on the given address; unless the contrary is proved. Mere denial in the written statement can be of no avail. In the circumstances, the Tribunal was right in proceeding on the assumption that the said letter was duly served upon the petitioners and it was therefore incumbent upon the petitioner to either accept the request or reject it, but nothing

khs/JULY 2016/5144-d

of that sort has been done by the petitioners in the present matter. In the circumstances, the respondent No. 1 was justified

in assuming that the petitioners have accepted the request and leave was extended upto 25-6-89 which was till end of academic session of 1988-89. In view of this finding it cannot be

said that the respondent No. 1 had abandoned her service as contended by the petitioners."

13.

This Court, therefore, declined to interfere in the order of

reinstatement awarded by the Tribunal in the Dr.S.R.Ambedkar case

(supra).

14. Notwithstanding the above, it cannot be ignored that there was

neither any advertisement published nor were applications called for.

The appointment of respondent No.1 as an "Assistant Teacher"

appears to be by virtue of the order dated 01/07/1994 which was not

preceded by any selection process. The Management in fact should

not have resorted to this procedure since the situation as it stands

before this Court today is that on the one hand, the Management

itself resorted to illegalities in appointing respondent No.1 and on the

other hand, is now taking advantage of its own wrong.

15. The petitioners have created an impression upon respondent

khs/JULY 2016/5144-d

No.1 that he would be considered for regular appointment after

completing his B.Ed. and as such recommended his case to the

Yeshwantrao Chavan Open University for completing B.Ed in vacation

as an "in service candidate".

16. It, therefore, emerges from the record that respondent No.1 has

been irregularly appointed without following the due selection

process. As the law stands today, this would amount to a back door

entry. Nevertheless, since the respondent was made to believe that

he would be accommodated in service after his B.Ed course is

completed and the Management terminated him as soon as he has

completed the B.Ed. course, calls for imposition of penalty on the

petitioner / Management in the light of Section 11(2)(e) of the

M.E.P.S. Act.

17. I am awarding compensation to the respondent/employee in

the above fact situation and also by taking into account that this

Court, at the time of admitting the petition, had stayed the impugned

order and consequentially, the respondent/employee is out of

employment for more than 19 years.

18. As such, this petition is partly allowed. The impugned

khs/JULY 2016/5144-d

judgment of the School Tribunal dated 23/11/2000 is modified by

granting compensation of 6 (six) months gross wages inclusive of pay

and allowances as are payable to an "Assistant Teacher" as per the

pay scale approved as on date, in lieu of reinstatement, continuity

and back wages. The compensation so awarded shall be paid by the

petitioner to respondent No.1 / employee within a period of 12

(twelve) weeks from today, failing which, the same shall carry interest

@ 3% from the date of the impugned judgment.

19. Rule is made partly absolute in the above terms.

( RAVINDRA V. GHUGE, J.)

khs/JULY 2016/5144-d