Bombay High Court
Manisha Sambhaji Jadhav vs Sant Kavi Mahipati Maharaj ... on 22 November, 2016
Bench: R.V. Ghuge
WP/962/2015+
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 962 OF 2015
Manisha Sambhaji Jadhav,
Age 35 years, Occ. Service
R/o Sheri Chikkhalthan,
Tq. Rahuri, Dist. Ahmednagar. ..Petitioner
Versus
1.Sant Kavi Mahipati Maharaj
Devsthan Trust, Taharabad,
Tq. Rahuri, Dist. Ahmednagar
Through it's President.
2. The New English School,
Taharabad, Tq. Rahuri,
District Ahmednagar,
Through its Principal / Headmaster.
3. The Education Officer (S),
Zilla Parishad, Ahmednagar. ..Respondents
WITH
WRIT PETITION NO. 1052 OF 2015
Archana Baban Jadhav
Age 27 years, Occ. Service
R/o Musalwadi, Tq. Rahuri,
District Ahmednagar. ..Petitioner
Versus
1.Sant Kavi Mahipati Maharaj
Devsthan Trust, Taharabad,
Tq. Rahuri, Dist. Ahmednagar
Through it's President.
2. The New English School,
Taharabad, Tq. Rahuri,
District Ahmednagar,
Through its Principal / Headmaster.
::: Uploaded on - 28/11/2016 ::: Downloaded on - 29/11/2016 00:09:12 :::
WP/962/2015+
2
3. The Education Officer (S),
Zilla Parishad, Ahmednagar. ..Respondents
...
Advocate for Petitioners : Shri Dhorde Vikram R.
Advocate for Respondents 1 & 2 : Shri Karpe Rahul R.
AGP for Respondent 3 : Shri N.T.Bhagat
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: November 22, 2016
...
ORAL JUDGMENT :-
1.
Heard learned Advocates for the respective parties.
2. Rule.
3. By consent, Rule is made returnable forthwith and the
petitions are taken up for final disposal.
4. While issuing notice in these matters on 9.2.2015, I had
recorded the submissions of the petitioner as follows:-
"1. Contention of Mr.Dhorde, learned Senior Advocate is
that the petitioners were initially appointed as an "Assistant
Teacher" on 10/06/2009. Appointment was approved and they
continued till their first termination, which was called in
question before the School Tribunal at Solapur in Appeal
No.63/2011 and 64/2011 respectively. By the judgment and
order of the School Tribunal dated 03/08/2012, their
termination was set aside. They were thereafter reinstated.
WP/962/2015+
2. It is further submitted that the respondent / employer
issued an order dated 12/05/2014 contending therein that the
Education Officer (Secondary) has not approved the
appointment of the petitioners on the ground that there is a
backlog and that when vacant posts for "Open" category are
available, the petitioners would be reinstated. Appeal
Nos.45/2014 and 46/2014, preferred by the petitioners, have
been rejected by the impugned judgment dated 01/10/2014.
3. Grievance of the petitioners is that despite the said
Education Officer, having been impleaded as respondent No.3
in Appeal No.63/2011 and 64/2011, he had never put forth the
issue of backlog and cannot raise the said ground, which
appears to be the foundation of the impugned termination.
The School Tribunal has rejected the appeal by the impugned
judgment.
4. Issue notice before admission to the respondents,
returnable on 11/03/2015. Learned AGP waives service for
respondent No.3. Till the next date of hearing, respondent
No.3 shall not appoint any candidate in place of the
petitioners and shall not fill in the said posts."
5. On 9.8.2016, after these matters were heard for quite some
time, I had passed the following order:-
"1 I have heard the learned Advocates at length in both
these matters. Their submissions have concluded. However,
before dictating an order, it is submitted that the reservation
WP/962/2015+
roster as in 2008 / 2009 when both these Petitioners were
appointed, was never placed before the School Tribunal. So
also, the same has not been placed before this Court as well.
2 The learned Advocate for the Management desires to
take instructions as to whether, the Management would be
agreeable to file an undertaking that the available two vacant
posts, which are said to be reserved for Scheduled Caste and
Nomadic Tribe categories, would be filled in by
accommodating these Petitioners, who have been in
employment from 2009 till 2014, and any future vacancy
would be utilized for recruiting candidates from the reserved
categories.
3 In the light of the above, by consent of the parties
stand over to 24.08.2016 to enable the Respondent/
Management to place on record the reservation roster as in
2008 / 2009 and to make a statement as desired. No further
submissions would be advanced.
4 Interim relief granted earlier to continue."
6. Since the learned Advocate for the respondent submits that
though the post of an Assistant Teacher for the S.T. and and N.T.
categories are vacant from 2009 for more than seven academic years,
the management is not willing to accommodate the petitioners on
the said posts. It is in this backdrop that the matters have been
heard.
WP/962/2015+
7. It is undisputed that both these petitioners are identically
situated Assistant Teachers, who have been appointed on 10.6.2009.
It is further admitted that in the appointment orders under Rule 9(5)
read with Schedule "D" of the Maharashtra Employees of Private
Schools (Conditions of Service) Rules, 1981 ("MEPS Rules" for short),
it is nowhere stated that these petitioners have been appointed
against the reserved category posts and that the said appointment is
only for an academic year, since the posts will have to be re-
advertised every year, atleast for the period of five years or till a
candidate from the N.T./S.T. category is available, whichever is
earlier. In short, none of the petitioners have the knowledge that
they were appointed against any reserved post.
8. Clause 2 of the appointment order indicates that these
petitioners were appointed permanently for the academic year from
15.6.2009. There is no further date mentioned in the appointment
order to conclude that the said appointment is restricted for one
academic year or a number of academic years. For the sake of
clarity, clause 2 of the appointment order, which is identical in
relation to both the petitioners reads as under:-
" 2. Your appointment is permanent for the Academic year -
from 15.6.2009 to ..... After Expiry of above period your
Services shall stand terminated without any notice."
WP/962/2015+
9. Learned Advocate for the respondent / management submits
that Clause 6 of the appointment order, which is, "Your appointment
is subject to the approval by the Education Officer, Zilla Parishad,
Ahmednagar", is an all embracing clause and will bring within its fold
even the aspect of appointment against the posts reserved for
backward classes.
10. I am unable to accept this far fetched contention since the
said clause cannot be interpreted to mean that the appointments of
these petitioners would tantamount to being against reserved
category posts. The petitioners need to be noticed that they were
being appointed against the reserved category posts. Rule 9(8) of the
MEPS Rules mandates that when vacancies are reserved under Rule
9(7) and the management desires to fill in such vacancies, they shall
be advertised in atleast one news paper having wide circulation in
the said region and also notify the vacancies to the Employment
Exchange of the District and to the District Social Welfare Officer.
11. For clarity Rule 9(7) to 9(9)(a)(b) are reproduced as under:-
" 9(7). The Management shall reserve 52 per cent of the total
number of posts of the teaching and non-teaching staff for
the persons belonging to the Scheduled Castes, Scheduled
Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes,
Special Backward Category and other Backward Classes as
WP/962/2015+
follows :-
(a) Scheduled Castes - 13 per cent
(b) Scheduled Tribes - 7 per cent
(c) De-notified Tribes (A) - 3 per cent
(d) Nomadic Tribes (B) - 2.5 per cent
(e) Nomadic Tribes (C) - 3 per cent
(f) Nomadic Tribes (D) - 2 per cent
(g) Special Backward Category - 2 per cent
(h) Other Backward Classes - 19 per cent
Total - 52 per cent
9(8)
For the purpose of filling up the vacancies reserved
under sub-rule (7) the Management shall advertise the
vacancies in at least one newspaper having wide circulation in
the region and also notify the vacancies to the Employment
Exchange of the District and to the District Social Welfare
Officer +[and to the associations or organisations of persons
belonging to Backward Classes, by whatever names such
associations or organisations are called, and which are
recognized by Government for the purposes of this sub-rule]
requisitioning the names of qualified personnel, if any,
registered with them. If it is not possible to fill in the
reserved post from amongst candidates, if any, who have
applied in response to the advertisement or whose names are
recommended by the Employment Exchange or the District
Social Welfare Officer +[or such associations or organisations
as aforesaid] or if no such names are recommended by the
Employment Exchange or the District Social Welfare Officer +
[or such associations or organisations as aforesaid] within a
period of one month the Management may proceed to fill up
the reserved post in accordance with the the provisions of
sub-rule (9).
WP/962/2015+
9(9)(a) In case it is not possible to fill in the teaching
post for which a vacancy is reserved for a person belonging to
a particular category of Backward Classes, the post may be
filed in by selecting a candidate from the other remaining
categories in the order specified in sub-rule (7) and if no
person from any of the categories is available, the post may
be filled in temporarily or an year-to-year basis by a
candidate not belonging to the Backward Classes.
(b) In the case of a non-teaching post, if a person from the
particular category of Backward Classes is not available, the
Management shall make efforts with regular intervals to fill
up the post within the period of five years and the post shall
not be filled up during that period by appointing any other
person who does not belong to the respective category of
Backward Class."
12. Sub-clause (a), reproduced above below Rule 9(9), would
indicate that after advertising the posts, if no candidate belonging to
the particular category is available, the candidate from the open
category may be appointed on year to year basis. In the backdrop of
this mandate of law, if the stand of the respondent is accepted, it
would mean that they have acted surreptitiously and secretively
without making either the petitioners or the competent authorities,
know that two posts were reserved for the backward classes and
were being filled in temporarily by appointing the petitioners. In this
fact situation, the contention of the respondent / management that
WP/962/2015+
Clause 6 of the appointment order would be an all embracing clause,
deserves to be rejected.
13. There is yet another angle to these two cases. Both these
petitioners were earlier terminated on 20.6.2011, orally, on the
ground that their appointment was not approved by the Education
Officer. It is stated that the appointments were not approved
because the management contended that both these petitioners
were appointed against reserved posts. By judgment dated 3.8.2012,
the School Tribunal allowed the Appeal Nos. 63 of 2011 and 64 of
2011, filed by these two petitioners and directed this management to
reinstate both of them as Assistant Teachers with continuity and full
backwages along with consequential benefits. There is no dispute
that this management did not challenge these judgments and
implemented the same by reinstating these petitioners with
continuity. Full backwages as granted are yet to be paid, is the
contention of the petitioners.
14. The above reason for termination having been rejected once,
would not be available for the management as well as the Education
Department to be raised once again in 2014, which has led to the
impugned termination of the petitioners for the same reason w.e.f.
12.5.2014. Once this issue has been dealt with by the School
Tribunal and the said judgment having not been challenged by the
WP/962/2015+
management or the Education Officer and having accepted the said
judgment by implementing it, in my view, it was not open for this
management to once again fall back upon the said reason and
terminate the petitioners.
15. The learned Advocate for the management has relied upon the
following judgments:-
(1) Uday Bojraj Toney Vs. Akkalkot Education Society
[2008 (1) Bom.C.R.307],
(2) Anna Manikrao Pethe Vs. The Presiding Officer
[1998 (4) Bom.C.R. 565],
(3) Janta Education Society Vs. Prakash Babarao Shingane
[2009 *6) Bom. C.R. 892] and
(4) President Vs. Sunita Bansidhar Patole
[2007 (3) Bom.C.R.829].
16. It is submitted, by placing reliance upon these reported
judgments, that where an appointment is made against a reserved
post, same has to be treated as temporary for the academic year and
though the employee from the other categories / open category is
appointed on year to year basis, he would not be entitled for
regularization.
17. There can be no debate on the ratio laid down in the above
cited reports. Similarly, Rule 9(9)(a) would indicate that such a
WP/962/2015+
candidate appointed against the category will not have a subsisting
right for continuance in employment. These judgments are not
applicable to the case of the respondent / management for the
reason that there is not a whisper in the appointment order that
these petitioners have been appointed against a particular category.
Clause 2 of the appointment order indicates that both of them have
been appointed permanently. On the same ground, both these
petitioners were orally terminated and the School Tribunal by its
earlier judgment dated 3.8.2012, has set aside the said ground and
directed the reinstatement of the petitioners, which judgment has
attained finality.
18. In the impugned judgment of the School Tribunal, dated
1.10.2014, it has been concluded that since the petitioners were
appointed against reserved category, they cannot claim continuance
or reinstatement in service. The Tribunal has completely lost sight of
the above recorded fact situation and has merely accepted the
contention of the respondent as gospel truth without legally
scrutinizing the said contentions. When there was no advertisement
as mandated under Rule 9(7) and (8), when the statutory authorities
were not informed that reserved posts are being filled in and when
these petitioners were not given any information in any form
whatsoever, that they were being appointed against reserved posts,
the impugned judgments are rendered, not only perverse and
WP/962/2015+
erroneous, but have actually resulted in encouraging the
management to take advantage of it's own wrong.
19. The respondent / management contends that the reservation
roster was placed before the Tribunal. Per contra, the petitioners
contend that there is no reservation roster carrying any date in the
year 2009 to indicate that there was any reservation. I am not
required to go into this controversy for the reasons and the
conclusions arrived at in the foregoing paragraphs of this judgment.
20. On the issue of backwages, the petitioners submit that since
backwages as per the earlier judgment dated 3.8.2012 have not been
paid by this management, their malafides have been exposed. The
second termination is for the same reason, which earlier has been set
aside by the Court. Hence, full backwages deserve to be granted.
21. Learned Advocate for the respondent / management submits
that as these petitions have not worked, the principle of "No Work
No Wages" deserves to be made applicable.
22. There is no dispute that the backwages granted by the School
Tribunal in the earlier judgment as against the first termination,
have not been paid by the management. Shri Dhorde hastens to add
that after the management accepted the earlier judgment of the
WP/962/2015+
School Tribunal and reinstated the petitioners on 20.8.2012, they
have been working till the second termination on 12.5.2014 and have
not been paid their regular salary for this entire duration and hence
no sympathy deserves to be shown towards this management.
23. Considering the above, both these petitions are partly
allowed. The impugned judgments of the School Tribunal dated
1.10.2014, stand quashed and set aside and Appeal Nos. 45 and 46 of
2014 stand allowed.
ig Consequentially, the oral termination dated
12.5.2014 stands quashed and set aside and the respondent /
management is directed to reinstate the petitioners in service with
continuity and with 60% backwages with the further direction that
the earlier backwages granted granted by judgment 3.8.2012 along
with the regular salary till 12.5.2014, shall be paid to these
petitioners within 12 weeks from today. It be noted that if the earlier
wages, the unpaid salary and 60% backwages as granted today are not
paid within 12 weeks, the same shall carry interest at the rate of 3%
per annum to the extent of earlier backwages from August 2012 and
for the unpaid salary and the backwages under this order, from the
date of this judgment.
24. Rule is made partly absolute in the above terms.
25. The respondent / management prays for a direction to stay
WP/962/2015+
this judgment for a period of four weeks, which is opposed by the
petitioners.
26. For the reasons assigned in this judgment, and having
concluded that the management has tried to take advantage of its
own wrongs and illegalities, request for stay is rejected.
( RAVINDRA V. GHUGE, J. )
ig ...
akl/d
