Bombay High Court
Deelip Uttamrao Bhosale vs Secretary, Mahatma Phule ... on 10 March, 2016
Bench: R.V. Ghuge
WP 2531/2011 with CA 2796/16
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2531/2011
WITH
CIVIL APPLICATION NO.2796/2016
Deelip s/o Uttamrao Bhosale,
Age 39 years Occ - Service,
R/o Talegaon Tq. Ambajogai Dist. Beed.
ig ...Petitioner...
Versus
1 Secretary,
Mahatma Phule Shikshan Prasarak
Mandal Kingaon, Tq. Ahmadpur,
Dist. Latur.
2 Headmaster,
Vasantrao Naik Prithamik Ashram
Shala Kingaon, Tq. Ahmadpur,
Dist. Latur.
3 Special District Social Welfare
Officer, Latur.
...Respondents...
.....
Shri V.V. Bhavthankar, Advocate for petitioner.
Shri S.S. Thombre, Advocate for respondent nos.1 & 2.
Shri D.R. Korde, AGP for respondent no.3.
.....
CORAM: RAVINDRA V. GHUGE, J.
DATE: 10.03.2016
ORAL JUDGMENT :
WP 2531/2011 with CA 2796/16
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1] The learned Advocates for the respective sides
graciously consented for the hearing of the petition
itself. Considering the same, the Civil Application
No.2796/2016 is allowed and the writ petition is taken up
for hearing.
2] Rule. Rule made returnable forthwith and heard
finally by the consent of the parties.
3] The grievance of the petitioner is that despite
having worked continuously as a Sports Teacher from
16.6.2007 till 16.6.2009, his termination has been upheld
by the impugned order dated 22.11.2010 passed by the
appellate authority-cum-Divisional Social Welfare
Officer, Latur.
4] The petitioner submits that he was initially
appointed on 16.6.1997 after he acquired the
qualification of B.A., B.P.Ed. He was continued on year-
to-year basis. The said school at Maindwadi Tq.Ambajogai
Dist.Beed was shifted to Kingaon Dist.Latur in 2005-06.
5] He further submits that he was continued even
thereafter and was orally terminated on 16.6.2009. He,
therefore, preferred Appeal No.3/2009 before the
Divisional Social Welfare Officer, which was dismissed by
WP 2531/2011 with CA 2796/16
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the impugned order.
6] He further submits that as per the information
received under the Right to Information Act from the Head
Master of the concerned school at Kingaon Tq.Ahmedpur
Dist.Latur, he has been working from 1997 and is shown to
be as a temporary. His month to month salary, ever since
he has joined till the date of termination, has not been
paid to him.
7] It is further pointed out that by virtue of
Clause 8(d) of the Government resolution dated 3.6.1999,
the petitioner is eligible to be appointed as a Sports
Teacher since the required qualification is Bachelor in
any faculty with B.P.Ed. It is, therefore, prayed that
this petition be allowed and the impugned order be
quashed and set aside.
8] Shri Thombre, learned Advocate appearing on
behalf of respondent nos.1 & 2 submits that the
petitioner was issued with an appointment order dated
25.6.2006 by which he was appointed as an Assistant
Teacher on temporary basis only for one academic year.
Subsequent appointment orders also indicate the
appointment for one year. Eventually, the petitioner had
WP 2531/2011 with CA 2796/16
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to be terminated since there was no sanctioned vacant
post of a Sports Teacher in the school operated by the
management.
9] He further submits that the petitioner was not
appointed by following any procedure since there was no
vacant post. Though he has acquired B.A., B.P.Ed.
qualification, on account of no sanctioned post, the
appropriate authority declined to grant any approval to
his continuation. The management cannot be blamed for
dispensing with the service of the petitioner since the
competent authority had declined to grant an approval and
the petitioner could not be continued thereafter merely
because he was engaged by the management. He, therefore,
prays for the dismissal of the petition.
10] The learned AGP appearing on behalf of
respondent no.3, submits that the impugned order can
neither be termed as being perverse nor erroneous. When
there was no sanctioned post, approval could not have
been granted by the competent authority. Even if it is
presumed that the petitioner is qualified, it would not
mean that he could be accommodated against a non-existing
post. He, therefore, submits that the appropriate
WP 2531/2011 with CA 2796/16
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authority could not have granted an approval and in the
event the management desires to continue the petitioner,
it may do so, provided it is so permitted in law and at
their own costs.
11] I have considered the submissions of the learned
Advocates.
12] After going through the impugned order, it was
put to the learned Advocate for the petitioner as to
whether he could point out any document, which would
indicate availability of a vacant post of Sports Teacher
with the respondent - school. The petitioner could not
indicate from any document about any existence of such a
vacant post or about the sanction of a post for a Sports
Teacher in the school.
13] It is undisputed that as there was no post,
there was no advertisement published seeking applications
for an appointment. Naturally, there was no procedure
that was followed for carrying out any recruitment to the
post of a Sports Teacher. The impugned order delivered
by the appellate authority indicates that all the above
factors have been taken account. The contention of the
petitioner that he has been working from 16.6.1997 could
WP 2531/2011 with CA 2796/16
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not be proved as there was no document before the
concerned authority. Based on the material before the
appellate authority, I do not find that the impugned
order could be termed as being perverse or erroneous.
14] The petitioner claims to have obtained
documentary evidence under the Right to Information Act
on the basis of which his claim that he has been working
from June, 1997 is established. The petitioner,
therefore, would be at liberty to take recourse to such a
remedy as may be available in law to raise a claim that
he has been working from June, 1997, onwards till
16.6.2009.
15] So also the petitioner contends that he has not
been paid any wages for the period 16.6.2006 till
16.6.2009. From the proceedings available on record, his
tenure of service from 16.6.2006 to 16.6.2009 is
established. To the extent of this petition, therefore,
his claim that he has not been paid wages for the said
three years could be entertained.
16] As such, in the event the petitioner has not
been paid his wages for the said three years or for any
period in the said three years, the respondent -
WP 2531/2011 with CA 2796/16
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management would be under an obligation to calculate his
wages and make the payment since no employee can be made
to work without salary and no employer could be permitted
to extract work without salary. Therefore, if the
respondent - management has not paid the wages of the
petitioner for any duration in the abovesaid three years,
the management shall accordingly make the payment within
a period of eight weeks from today.
17] With the above directions and without causing
any interference in the impugned order, this petition is
partly allowed. Rule is made partly absolute. No order
as to costs.
(RAVINDRA V. GHUGE, J.)
ndk/c1031610.doc
