Chavan Pandit Bhimala vs President Magaswargiya Shikshan ...
2016 Latest Caselaw 2312 Bom

                                              1




                                                                                
              IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                          BENCH AT AURANGABAD




                                                        
                             WRIT PETITION NO.2970 OF 1997

    Chavan Pandit Bhimla,
    Age-27 years, Occu-Service-




                                                       
    Teacher in Post Basic Asram School,
    Waghdara (Tanda), Tal.Gangakhed,                                PETITIONER
    Dist.Parbhani




                                             
    VERSUS 

    1. The President,
                               
        Magasvargiya Savalal Shikshan
        Prasarak Mandal, Waghdara (Tanda),
                              
        Tal.Gangakhed, Dist. Parbhani,

    2. The Headmaster,
        Saraswati Post Basic Ashram Shala,
        Waghdara (Tanda),
      


        Tal.Gangakhed, Dist.Parbhani,
   



    3. Rama S/o Shama Rathod,
        Age-Major, Occu-Service,
        R/o Saikheda, Tq.Gangakhed,
        Dist.Parbhani,





    4. The District Social Welfare
        Officer, Dist.Parbhani                                      RESPONDENTS 

Mr.P.B.Rakhunde, Advocate for the petitioner.

Mr.K.B.Jadhav h/f Mr.S.B.Bhapkar, Advocate for respondent No.1. Mr.R.J.Godbole, Advocate for respondent No.3. Respondent Nos. 2 and 4 are served.

( CORAM : RAVINDRA V. GHUGE, J.)

DATE : 05/05/2016

ORAL JUDGMENT :

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1. This petition was Admitted by order dated 05/08/1997.

2. The petitioner was respondent No.4 in Appeal No.115/1995

filed by respondent No.3 / appellant herein. It was the case of the

appellant that he was appointed on 02/12/1991 as an "Untrained

Assistant Teacher". Subsequently, he was recommended by the

Management for the B.Ed. Course as an in-service candidate. Even

the Education Officer approved his proposal for training. After he

returned from training, and attempted to resume duties on

22/06/1995, the Management orally refused to allow him to join

duties. Hence, the appeal u/s 9 of the M.E.P.S.Act.

3. Grievance of the petitioner is that the appeal was allowed by

the impugned judgment dated 17/12/1996 and the oral termination

of the appellant was set aside. He was granted reinstatement with

continuity and back wages, leading to the termination of the

petitioner on 25/01/1997. It is conceded by the learned Advocate for

the petitioner on instructions that his termination dated 25/01/1997

has not been challenged u/s 9 before the Tribunal.

4. The petitioner submits that he was appointed as a Teacher on

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01/07/1994. The appellant was appointed on 02/12/1991. Services

of the petitioner were approved. Services of the appellant were not

approved when he was recommended for the B.Ed. Course.

5. The learned Advocate for the petitioner strenuously submit that

the Tribunal has violated the principles of natural justice by not

hearing the petitioner. He relies on the following judgments on the

point of adherence to the principles of natural justice.

[i] Sk.Jakir Sk.Babu Vs. State of Maharashtra and another, 2008(4)

Mh.L.J. (Cri.) 495, [ii] Yawalkar Pesticides Pvt.Ltd., Nagpur Vs. Nagpur Municipal Corporation and another, 2011(5) Mh.L.J. 806,

[iii] Celina Almeida Vs. Minister of Urban Development, Goa and

others, 2013(4) Mh.L.J. 53.

6. The record and proceedings reveal that the petitioner, despite

service of the Tribunal, chose to remain absent and did not file a

written statement. In these circumstances, it cannot be said that

the Tribunal has failed to observe the principles of natural justice.

7. It is further stated that the petitioner was not heard by the

Tribunal. I have considered paragraph No.5 of the impugned

judgment which indicates that the petitioner was served with the

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notice by the Tribunal. He did not appear in the proceedings and did

not file his written statement or say. It also cannot be ignored that

the Management had challenged the impugned judgment in WP

No.2253/1997 and the said petition has been dismissed in default.

Same has not been restored.

8. The appellant has now settled in employment after he was

reinstated. The petitioner was subsequently absorbed as a Lab

Assistant and he is in the confirmed service of the Management. This

Court, while admitting the petition on 05/08/1997, did not grant

interim relief to the petitioner.

9. Rule 6 of the M.E.P.S.Rules, 1981, by the second proviso

indicates that an untrained graduate teacher, after obtaining the

permission from the Education Officer, can be continued in service.

He shall be continued in service on the condition that he obtains the

prescribed training qualification at his own costs. This proviso was

made applicable for the cases prior to the introduction of the Rules.

Needless to state, even in this case, though it would not be covered by

the said proviso, the appellant has acquired the training qualification

and the Tribunal has therefore rightly reinstated him in service

considering the fact that he was undergoing the B.Ed. course and

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had not abandoned employment. So also, he was senior to the

petitioner and the petitioner was appointed on 01/07/1994 which is

prior to the date of termination of the appellant.

10. In the light of the above, I do not find that the impugned

judgment which has set aside the act of the employer in orally

refusing work to the appellant despite having acquired the training

qualification, could be termed as being perverse and erroneous.

11. As such, this petition is devoid of merit and is therefore,

dismissed. Rule is discharged.

( RAVINDRA V. GHUGE, J.)

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