Devidas Rajaram Patil vs The State Of Maharashtra And ...
2016 Latest Caselaw 6577 Bom

                                         1




                                                                          
             IN THE HIGH COURT OF JUDICATURE OF BOMBAY   
                         BENCH AT AURANGABAD




                                                  
                            WRIT PETITION NO.9322 OF 2015

    Devidas Rajaram Patil,
    Age-39 years, Occu-Service/Asst.Teacher,




                                                 
    C/o Dr.P.C.Patil,
    Near Z.P.School, Sillod,
    Dist.Aurangabad                                    -- PETITIONER 




                                        
    VERSUS

    1.     The State of Maharashtra,
                              
           Through, its Secretary,
           Higher Education Department,
           Mantralaya, Mumbai - 32,
                             
    2.     The Secretary,
           Bhartiya Shikshan Sanstha,
           N-12, HUDCO, Roza Bagh,
           Abhijot Vidyalaya,
      


           Aurangabad,
   



    3.     The Principal,
           Gajanan Secondayr and Higher Secondary School,
           Golegaon, Tal.Sillod,
           Dist. Aurangabad,





    4.     The Director of Education,
           Directorate of Secondary and Higher Secondary
           Education, State of Maharashtra,
           Pune - 1,





    5.     The Dy.Director of Education,
           Aurangabad Division,
           Aurangabad,

    6.     The Education Officer,
           Zilla Parishad, Aurangabad                  -- RESPONDENTS 

WITH WRIT PETITION NO.11048 OF 2015

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1. Bhartiya Shikshan Sanstha

N-12, HUDCO, Rojabag, Aurangabad, C/o Abhijyot Vidyalaya Aurangabad, Dist.Aurangabad, Through its Secretary,

Abhinandan Ashok Patil, Age-24 years, Occu : Agriculture R/o. B-102, Tulsi Arcade, Cannaught Place, N-5, CIDCO, Aurangabad,

2. Gajanan Secondary and Higher Secondary School, at Golegaon,ig Tq.Sillod, Dist.Aurangabad, Through its Principal -- PETITIONERS

VERSUS

1. Babulal Chapa Patil, Age-37 years, Occu-Service, R/o C/o Principal P.C.Patil,

Near Zilla Parishad School, Sillod, Tq.Sillod,

Dist.Aurangabad,

2. The Director of Education, Directorate of Secondary and

Higher Secondary Education, Maharashtra State, Pune,

3. The Deputy Director of Education, Aurangabad Region, Aurangabad,

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

Mr.Anandsing Bayas, Advocate for the petitioner in WP No.9322/2015.

Mr.S.P.Sonpawale, AGP for respondents/State in both matters. Mr.R.I.Wakade, Advocate for respondent Nos. 2 and 3 in WP No.9322/2015.

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Mr.Ajinkya Deshmukh h/f Mr.A.V.Hon, Advocate for the petitioners in WP No.11048/2015.

Mr.A.S.Bayas, Advocate for respondent No.1 in WP No.11048/2015.

( CORAM : RAVINDRA V. GHUGE, J.)

DATE : 21/11/2016

ORAL JUDGMENT :

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

consent of the parties.

2. WP No.9322/2015 is yet another case before this Court where

the employee contends that he was orally terminated from 11.7.2013

and the Management contends that he was never terminated. The

fact remains that in this case, the petitioner employee has worked for

10 years in continuous employment with respondent No.2/

Management.

3. I have heard the submissions of the learned Advocates for the

respective sides at length. The undisputed factors are as under :-

[a] The petitioner employee was issued with an appointment order dated 14/07/2003 u/s 5 r/w Schedule D of the MEPS Act and the MEPS Rules.

[b] He was appointed as an "Assistant Teacher" considering his qualification of M.A., B.Ed.

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[c] He was appointed temporarily for 2 years. [d] Clause 2 of the appointment order indicates the above and also

mentions that the two years appointment is on probation. [e] The appointment order does not state that the petitioner was appointed on part time basis.

[f] A resolution was passed by the Management on 13/07/2003 and the petitioner was sought to be appointed alongwith 3 other teachers.

[g] By communication dated 17/01/2011, the Deputy Director of

Education did not grant approval to the appointment of the petitioner and observed that there is no availability of work even for a part timer and hence the approval is not granted for

the year 2009-2010.

[h] The Management does not contend that the petitioner has been terminated pursuant to the communication dated 17/01/2011.

[i] The petitioner approached the School Tribunal by filing Appeal

No.14/2013 for challenging his oral termination dated 11/07/2013.

[j] The Management has filed its written statement running into

14 pages.

[k] It is nowhere contended that the appointment order issued to the petitioner was for a part time assignment. [l] In paragraph No.3 of the written statement, it is admitted that

"The appellant was appointed on 01/07/2003 as an Assistant Teacher".

[m] In paragraph No.9 of the written statement, it is contended that the Deputy Director of Education has granted approvals to the appointment of the petitioner till the academic year 2008- 2009.

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(n) It is alleged in paragraph No.9 that the petitioner did not work continuously from 01/07/2003 to 11/07/2013, though it is not

stated in the written statement as to whether he was remaining absent or as to whether there was no workload, in as much as there is no contention that any disciplinary action was

initiated against the petitioner.

[o] In paragraph No.14, it is categorically stated that the appellant himself has remained absent from 30/04/2013, that the

Management did not restrain him from signing the muster roll

from 17/06/2013 and that there is no question to prohibit him from signing the muster roll as he himself was absent from

17/06/2013 which was the opening day of the school after the vacations of the Month of May.

[p] Though it is stated in paragraph No.16 of the written statement that the petitioner was appointed on temporary basis, the fact

remains that he has worked for 10 years.

[q] A stigma is sought to be attached in paragraph No.16 of the written statement that the petitioner's service is not satisfactory and hence there is no question to confirm him in

employment, notwithstanding the fact that the petitioner worked for 10 years and has not been communicated his shortcomings and has not been apprised of his alleged unsatisfactory performance.

[r] In paragraph No.16, it is stated that the Management has never terminated the service of the petitioner.

4. From the undisputed factors as recorded above, it is apparent

that the Management has taken a stand that the petitioner has not

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been terminated. It is also admitted that there were vacations in May

2013 and 17/06/2013 was the first day after vacations when the

petitioner claims to have been prevented from signing the muster roll.

If this be the situation, the issue of termination is put to rest by the

Management itself.

5. The Management contends that there is no workload available.

If the Deputy Director has passed an order on 17/01/2011 observing

that the workload has raised, the Management should have brought

this aspect to the notice of the petitioner in writing and if he was the

junior most employee, his proposal for being declared surplus and

further absorption in any other school where vacancy was available,

should have been forwarded by the Management to the Department

of Education.

6. It is apparent that after the School Tribunal concluded that the

appointment of the petitioner is legal and valid and therefore

sustainable, it should have dealt with the issue as to whether the

short fall in the workload would lead to the petitioner's being

declared as surplus. Rather than dealing with the said issue, the

Tribunal has dismissed the appeal accepting the statement of the

Management as gospel truth, without noting that the petitioner will

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have to be dealt with strictly in accordance with the Act of 1977 and

1989 Rules, for being declared as Surplus. The petitioner is not

expected by Law to approach the Education Officer for being declared

surplus. The onus and burden lies on the Management to refer his

case to the Education Department and get an order of the petitioner

being declared as surplus. Consequentially, the proviso below section

5(1) of the MEPS Act, would then entitle the petitioner to be absorbed

as per his seniority emerging from the seniority list of the surplus

teachers.

7. From the written statement of the Management, this appears to

be a classic case of a confused Management not being able to settle

on a particular reason for purportedly dispensing with the service of

the petitioner. In one breath, it is stated in the written statement

that he was appointed as a part time teacher, when the appointment

order indicates that he was appointed for 2 years and also mentions

that he was on probation. Then the Management takes a stand in

the written statement that he has remained absent after 30/04/2013

when the academic year had in fact come to an end. He cannot

therefore be held to be unauthorizedly remaining absent or

absconding in vacation. It is admitted by the Management that

17/06/2013 was the opening date and since then the signature of the

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petitioner does not appear on the muster roll. It is then stated in the

written statement that the Management neither prevented him from

signing the muster roll nor did it terminate him.

8. In the light of the above, I am of the view that as the

Management has not terminated the service of the petitioner and

since the Management has not taken steps for declaring the

petitioner surplus by following the due procedure of law, these

aspects having been lost sight of by the School Tribunal which

renders the impugned judgment of the School Tribunal perverse and

erroneous.

9. This petition, is therefore, partly allowed. The impugned

judgment of the School Tribunal dated 22/06/2015 is quashed and

set aside and Appeal No.14/2013 filed by the petitioner stands partly

allowed. The petitioner shall be reinstated in service with continuity

from the Academic year 2013 onwards.

10. In so far as the back wages are concerned, the petitioner is at

liberty to move a representation to the Education Department for

claiming wages for the reason that the Education Department has

taken a stand that there is no workload. Such representation shall

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be considered strictly in accordance with Law and the Education

Department i.e. respondent Nos.4, 5 and 6 shall take an appropriate

decision.

11. Needless to state, if the workload is still not available, the

Management is at liberty to forward the proposal of the petitioner to

respondent Nos. 4, 5 and 6 / Education Department for being

declared as surplus strictly on the basis of his seniority. In the

event, work is available, the Management shall proceed to allot work

to the petitioner.

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

ORAL JUDGMENT IN WP NO.11048 OF 2015

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

consent of the parties.

14. In this matter, the same Management as in the first case, has

challenged the judgment of the School Tribunal dated 22/06/2015 by

which Appeal No.15/2003 filed by respondent No.1/ appellant has

been allowed.

khs/NOV.2016/9322-d

15. The date of appointment of this appellant and the facts of this

case are said to be identical to the first petition decided as above. In

this case as well, the appellant is appointed on 01/07/2003 and he

alleged oral termination on 11/07/2013. The petitioner/Management

has taken the same stand that he was never terminated, that he was

absent after 30/04/2013 and that he has abandoned service.

16.

The Management has similarly taken a stand that he was never

restrained from signing the muster roll and he was never orally

terminated from service. The only difference between this case and

the earlier case is that the School Tribunal concluded that one

Assistant Teacher Mr.S.G.Jadhav was appointed on 01/12/2003 in

the Marathi subject and being junior to the appellant, who was

appointed on 01/07/2003 for Marathi subject, the said Mr.Jadhav

will have to be treated as surplus. It needs mention that the

petitioner in the first petition was a teacher of Hindi subject.

17. It is informed by the learned Advocates that Mr.Jadhav was

appointed against the OBC category and the appellant herein was

appointed from the open category. Mr.Jadhav is also said to be a

physically challenged person. These aspects were lost sight of by the

School Tribunal and being oblivious to these two aspects, the

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impugned order of reinstatement has been passed.

18. It is trite law that a surplus teacher is one who is the junior

most person. In between employees so as to calculate juniority, it is

settled that persons belonging to the reserved categories are not to be

equated with a teacher from the Open Category. In a given case, if

the teacher belonging to the reserved category is junior most and the

immediate senior teacher belongs to the Open Category, the said

senior teacher is to be considered as being junior most for deciding as

to who is the surplus teacher.

19. In the light of the above, this petition is partly allowed.

Though the oral termination is rightly set aside by the Tribunal and

reinstatement has been rightly granted, I am modifying the directions

of the Tribunal to the extent of the back wages, for which the

appellant shall move a representation to the concerned Education

Department / respondent Nos. 2, 3 and 4 herein for seeking the

wages for the period of termination till reinstatement and shall be

considered by the said respondents strictly in accordance with the

Rules.

20. So also, the petitioner/Management shall follow the rules

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strictly for referring the case of a surplus teacher in between the

petitioner and Mr.Jadhav in the light of the observations set out

hereinabove and the Education Department shall consider the said

proposal strictly as per rules. Needless to state, the teacher who is

declared surplus shall be enlisted in the list of surplus candidates

and would be eligible for absorption strictly in accordance with his

seniority in the said list. In both these cases, in the event issue of

surplus of teachers still exists, the Management shall deal with the

said issue as expeditiously as possible and preferably within a period

of 8 (eight) weeks from today.

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

( RAVINDRA V. GHUGE, J.)

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