Savita Madhavrao Chavan @ Savita ... vs The President Chhatrapati ...
2016 Latest Caselaw 6487 Bom

                                            1




                                                                             
             IN THE HIGH COURT OF JUDICATURE OF BOMBAY   
                         BENCH AT AURANGABAD




                                                     
                           WRIT PETITION NO.11778 OF 2015

    Savita d/o Madhavrao Chavan
    @ Smt.Savita w/o Anil Nagade,




                                                    
    Age-48 years, Occu-At Present Nil,
    R/o C/o Anilkumar Ramrao Nagde,
    East Balajinagar, Near Dal Mill,
    Behind Sahyadri Hotel, Omerga,




                                           
    Tq.Omerga, Dist.Osmanabad                             -- PETITIONER

    VERSUS                    
    1.     The President,
           Shri Chhatrapati Shivaji Shikshan
                             
           Sanstha, Kanya High School,
           Omerga, Tq.Omerga,
           Dist.Osmanabad,

    2.     The Secretary,
      


           Shri Chhatrapati Shivaji Shikshan
           Sanstha, Kanya High School,
   



           Omerga, Tq.Omerga,
           Dist.Osmanabad,

    3.     Headmistress,





           Shri Chhatrapati Shivaji Shikshan
           Sanstha, Kanya High School,
           Omerga, Tq.Omerga,
           Dist.Osmanabad,





    4.     The Education Officer (Secondary),
           Zilla Parishad, Osmanabad                      --  RESPONDENTS

Mr.R.L.Kute h/f Mr.V.R.Dhorde, Advocate for the petitioner. Respondent No.1 served.

Mr.V.B.Jagtap, Advocate for respondent Nos. 2 and 3.

( CORAM : RAVINDRA V. GHUGE, J.) DATE : 16/11/2016

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ORAL JUDGMENT :

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

consent of the parties.

2. The petitioner is aggrieved by the judgment dated 03/10/2015

delivered by the School Tribunal, Solapur, by which her Appeal

No.346/1996 has been dismissed.

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

length. Considering the order that I intend to pass, I am not required

to advert to their entire submissions. Suffice it to say that there is no

dispute that the petitioner had acquired her graduation degree in

Science in 1990 with Chemistry being her principal subject and Biology

and Zoology being subsidiary subjects. She was appointed on

probation for one year by order dated 01/10/1991 as an untrained

teacher. By a subsequent order, she was again appointed on probation

for one year. These orders were under Rule 67.2 (b) of the Secondary

Schools Code.

4. It is undisputed that the Deputy Director of Education accepted

the application of the petitioner and informed the Principal of the

Educational Society that she was permitted to acquire B.Ed.

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qualifications through postal course, which is commonly known as

postal B.Ed. It is equally undisputed that the petitioner acquired

B.P.Ed. qualifications on 03/05/1992 and has acquired her B.Ed.

qualifications through Post by communication dated 01/04/2006. The

fact remains that the qualifications required for being a permanent

teacher was a graduation degree in Education, which the petitioner did

not possess prior to 01/04/2006. I am not required to deal with the

issue that the petitioner required 13 years to complete her postal B.Ed.

5. The respondent/Management has contended that the petitioner

was terminated by order dated 30/03/1996 which was given effect from

30/04/1996. This Court, by its judgment dated 04/04/2014 had

partly allowed WP No.578/2001 and had remitted the appeal of the

petitioner to the School Tribunal for reconsideration after it was

revealed that she had approached the School Tribunal in 1996 on the

basis of oral termination, when the respondent had taken a stand that

the termination order dated 30/03/1996 given effect to from

30/04/1996, was not challenged by the petitioner before the Tribunal.

6. The issue is that the petitioner was continued on temporary basis

though she was officially shown by the management to be on probation

for two years. After completion of probation of 2 years, the Management

was required to take a decision as to whether she should be continued

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as a regular employee or whether her probation period needs to be

extended. The Management has vehemently contended that having

terminated the petitioner on 30/04/1996, there was no reason for the

Management either to continue her in employment or to support her

candidature for postal B.Ed. notwithstanding the fact that the

Department of Education had permitted the petitioner to acquire postal

B.Ed qualifications by the letter dated 21/12/1993.

7. The Management has come up with a defence that the petitioner

was appointed against the S.T. Category by appointment order dated

11/06/1995 since the Institution was sanctioned 20% salary grants

and was obliged to ensure that the reservation policy is fully

implemented. She was, therefore, engaged as a temporary against ST

category by appointment order dated 11/06/1995 which she has

specifically accepted by executing an undertaking. Upon closing of the

academic year on 30/04/1996, she was disengaged.

8. In the above backdrop, it is apparent that the respondent /

Management made the petitioner believe that she was appointed on

probation by the appointment order dated 01/10/1991. This was

followed by another appointment order dated 05/07/1992 indicating

that she was again on probation for one year. The law on probation is

settled. A person on probation is being tested for his suitability for

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being engaged on permanent basis on a permanent vacant post. As

such, by creating a picture that the petitioner was engaged on probation

for two years, the Management made the petitioner believe that she

would be regularized in employment.

9. In contra distinction, the Management engaged her in 1995

against the S.T. category. Neither was any advertisement published,

nor was the procedure for selection and appointment followed by the

Management. Needless to state, the burden to resort to a proper

selection process strictly in accordance with the rules lies on the

Management since the whole process of selection is at the behest of the

Management.

10. Notwithstanding the above, it cannot be ignored that the

petitioner is out of employment for more than 20 years and there was

no valid selection process resorted to by the Management. It also

cannot be ignored that the petitioner was not possessing the requisite

qualifications at the time of her appointment on probation. In this

backdrop, though there can be no order of reinstatement with

continuity, the Management can be penalized by grant of compensation

u/s 11(2)(e) since the Management made the petitioner believe that she

was being considered for regular appointment against the permanent

vacant post by appointing her on probation for 2 years and yet having

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continued her on temporary basis from the academic year 1991 till

30/04/1996.

11. In the light of the above, this petition is partly allowed only to the

extent of directing the respondent/Management Nos.1 and 2 to pay

compensation equal to the salary for 6 months u/s 11(2)(e) by

considering the present salary payable to a teacher with whom the

petitioner can be compared. Needless to state, the said amount of

salary shall include pay and allowances as set out u/s 11(2)(e) and shall

be paid to the petitioner within a period of 12 weeks from today, failing

which the said amount shall carry interest @ 6% from the date of the

judgment of the School Tribunal. As such, the impugned judgment of

the School Tribunal stands modified in these terms.

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

( RAVINDRA V. GHUGE, J.)

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