Bombay High Court
Smt. Shailaja Gangadhar Khhirmar vs The Secretary Girna Vidya ... on 17 November, 2016
Bench: R.V. Ghuge
WP/727/1997
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 727 OF 1997
WITH
CIVIL APPLICATION NO. 451 OF 2008
Smt. Shailaja Gangadhar Khairnar
Age 41 years, Occ. Asstt. Teacher
R/o Jahagirdar Wadi, Bhalchandra
Sadan, Chalisgaon, Dist. Jalgaon. ..Petitioner
Versus
1. The Secretary,
Girna Vidya Prasarak Mandal,
Mehunbare, Tq. Chalisgaon,
District Jalgaon.
2. The Head Master,
Girna Vidya Prasarak Mandal's
High School, Khadkisim,
Taluka Chalisgaon,
District Jalgaon.
3. Smt. Nanda Laxman Chavan,
Girna Vidya Prasarak Mandal,
Tq. Chalisgaon,
District Jalgaon (424106). ..Respondents
...
Advocate for Petitioner : Shri Pradip Deshmukh
h/f Smt. Smita Deshpande
Advocate for Respondents 1 and 2 : Shri V.Y.Patil
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: November 17, 2016
...
ORAL JUDGMENT :-
1. The petitioner is aggrieved by the judgment and order dated
9.12.1996, by which, her Appeal No.3 of 1990 has been dismissed and
WP/727/1997
her termination w.e.f. 31.3.1989 has been sustained.
2. This petition was admitted on 25.2.1997 and the learned
Division Bench of this Court did not grant interim relief to the
petitioner.
3. I have considered the strenuous submissions of Shri Deshmukh
on behalf of the petitioner and Shri Patil, learned Advocate on behalf
of respondents 1 and 2. None has appeared on behalf of respondent
No.3.
4. There is no dispute that the petitioner was appointed purely
on temporary basis for one academic year w.e.f. 1.8.1986 to
30.4.1987 as against a leave vacancy. She was similarly appointed by
order dated 2.5.1987 for one more academic year and which was
followed by a similar order dated 13.6.1988 for one academic year.
5. The petitioner approached the School Tribunal contending that
she was orally terminated w.e.f. 17.6.1989. He appeal was initially
allowed by judgment dated 30.8.1993. By the order of this Court
dated 6.12.1993, the said judgment was quashed and set aside as it
was an ex-parte judgment and the matter was remitted back again to
the School Tribunal for a decision afresh. By the impugned
judgment, the Appeal has been dismissed.
WP/727/1997
6. The respondent / management had pleaded before the
Tribunal that the order of termination dated 23.3.1989 was served
upon the petitioner under Certificate of Posting ("UCP"). There is no
evidence to indicate the service of the termination order. So also,
service by UCP leaves no evidence and as such there cannot be a
presumption that the purported service by UCP would tantamount to
proper service. The management has further pleaded that they
served the order by UCP because the petitioner refused to accept the
termination order. This contention is also unacceptable since, the
management could have served the termination order by RPAD in the
backdrop of an alleged refusal to accept by the petitioner. In this
backdrop, the termination is presumed to be dated 17.6.1989.
7. The petitioner has vehemently contended that she has
attained the deemed status of a permanent employee since she has
worked for more than two years as an Assistant Teacher, under
Section 5(2) of the Maharashtra Employees of Private Schools
(Conditions of Service) Regulation Act, 1977 ("the MEPS Act" for
short). It is, therefore, contended that the termination without an
opportunity of hearing cannot be inflicted upon a deemed permanent
employee. The Maharashtra Employees of Private Schools (Conditions
of Service) Rules, 1981 mandate that a permanent employee is
required to be heard prior to termination and dismissal requires a
WP/727/1997
departmental enquiry to be conducted.
8. In the backdrop of the above contention, I have scrutinized
the appointment orders issued to the petitioner. It was on her
application that she was appointed as a temporary employee for one
academic year each by three appointment orders. The petitioner has
not pleaded in the memo of the Appeal that there was an
advertisement published by the management and pursuant to the
said advertisement, she had appeared for the interviews and was
selected by the competent selection committee.
9. Though Shri Deshmukh has strenuously contended that
approval as a temporary employee for one year would presuppose
that the procedure for appointment has been followed, I am not
impressed by the said submission for the reason that the Education
Officer has granted approval only for her temporary engagement.
Upon each appointment of the petitioner, the Education Officer has
granted approval for the temporary engagement of the petitioner.
Nevertheless, it appears that the management has continued the
petitioner on temporary basis despite the undisputed position with
regard to her qualifications that she was B.A., B.Ed. qualified and
had the requisite qualifications for being appointed as an Assistant
Teacher at the relevant time.
WP/727/1997
10. Considering the fact that the petitioner is out of employment
from June 1989 for more than 27 years, though there cannot be a
reinstatement in service with continuity after such a long duration of
unemployment, the management deserves to be penalised under
Section 11(2)(e) of the Act of 1971.
11. Shri Deshmukh has pointed out that the petitioner was treated
as a surplus teacher by the Education Officer, Zilla Parishad, Jalgaon.
This is evident by the fact that the Education Officer had issued a
letter dated 11.6.1990, which is at page 209 of the petition paper
book, whereby, the Edalabad Taluka Education Society, Edalabad was
directed to absorb the petitioner in place of one Shri M.M.Patil.
Copy of the said letter was addressed to the petitioner on her
residence address as is evident from the said communication. It is
unknown as to why the petitioner has not joined the Edalabad
Taluka Education Society, Edalabad in June 1990.
12. At this juncture, Shri Deshmukh submits that though the
petitioner has not stated in her rejoinder dated 5.7.2015, the order
of the learned Division Bench dated 6.12.1993 directing the
reinstatement of the petitioner from 30.8.1993 was complied with
and the petitioner was once again terminated after her Appeal was
dismissed by the School Tribunal on 9.12.1996. She has thus worked
for three more years, pursuant to the directions of this Court.
WP/727/1997
13. Though Shri Deshmukh has made the above statement, it is
beyond comprehension as to why the petitioner, who has filed a
rejoinder as recently as on 5.7.2015, has not stated therein that she
was reinstated on a particular date and after the dismissal of her
Appeal, she was terminated from service on a particular date. In the
light of the above, even if it is assumed that the petitioner worked
from 1994 till 1996, she is out of employment for more than 20 years.
14.
In the light of the above, this petition is partly allowed by
modifying the impugned order to the extent of directing the
respondent / management to pay six months' wages including
allowances under Section 11(2)(e) of the MEPS Rules from the date of
the judgment of the School Tribunal, along with 3% p.a. interest on
the said amount, till it is actually paid. The respondent shall pay the
said amount within a period of twelve weeks from today.
15. Rule is made partly absolute in the above terms.
16. Pending Civil Application stands disposed off.
( RAVINDRA V. GHUGE, J. )
...
akl/d
