Shishu Vikas Education Society ... vs Shri Vijay Gulabrao Rajurkar And ...
2016 Latest Caselaw 6639 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         : NAGPUR BENCH : NAGPUR.




                                                                 
                           WRIT PETITION NO. 4580 OF 2016

    (1) Shishu Vikas Education Society,




                                                                
          through its Secretary, 
          Shri Chandrakant Devnath Gohane, 
          Shishu Vikas Madhyamik 
          Vidyalaya, Killa Road, Mahal, 
          Nagpur. 




                                                  
    (2) Head Master, Shishu Vikas
                              
          Madhyamik Vidyalaya, 
          Killa Road, Mahal, Nagpur.                                              ... Petitioners
                             
           // VERSUS //

    (1) Shri Vijay Gulabrao Rajurkar,
          Age 41 years old,
      

          R/o C/o Mangesh Lakshane, 
          Navi Shukrawari, Mahal, Nagpur. 
   



    (2) Education Officer (Secondary),
          Zilla Parishad, Nagpur. 

    (3) The Presiding Officer,





          School Tribunal, Nagpur, 
          2nd Floor Administrative Building No. 1, 
          Civil Lines, Nagpur.                                                 ... Respondents
    -------------------------------------------------------------------------------------------------





    Shri B. H. Shambarkar, Advocate for the petitioners
    Shri A. M. Sudame, Advocate for the respondent no. 1
    Shri K. L. Dharmadhikari, AGP for the respondent nos. 2 and 3  
    -------------------------------------------------------------------------------------------------

                                                 CORAM :  PRASANNA B. VARALE, J.
                                                  DATE    : 23-11-2016.




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    JUDGMENT

Rule. Rule made returnable forthwith.

2. Heard Shri Shambharkar, learned counsel for the

petitioners, Shri Sudame, learned counsel for the respondent no. 1

and Shri Dharmadhikari, learned Assistant Government Pleader for the

respondent nos. 2 and 3.

3.

By the present petition, the petitioners challenge the

judgment and order passed by the learned Presiding Officer, School

Tribunal, Nagpur in Appeal No. STN-14/2013.

4. Brief facts giving rise to the present petition can be

summarized as follows.

The petitioner no. 1 is the society running the petitioner no. 2 -

school . The respondent no. 1 was appointed in the petitioner no. 2 -

school by issuing an appointment order dated 21-2-2010. The said

appointment was temporary in nature for a period of two year on a

fixed honorarium at the rate of Rs. 2,000/- per month. A proposal

was forwarded to the Education Officer (Secondary), Zilla Parishad,

Nagpur for approval to the appointment of the respondent no. 1 as

Shikshan Sevak with effect from 22-2-2010. The Education Officer

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(Secondary) by a communication forwarded to the petitioner no. 1 -

society granted approval to the appointment of the respondent no. 1.

By a communication dated 21-1-2013, the petitioner no. 1 issued

notice to the respondent no. 1 for termination of his services on the

ground of his unsatisfactory performance. By order dated 21-2-2013,

an order was issued terminating the services of the respondent no. 1.

Being aggrieved by the said order, the respondent no. 1 preferred an

appeal under Section 9 of the Maharashtra Employees of Private

Schools (Conditions of Service) Regulation Act, 1977 before the

learned Presiding Officer of the School Tribunal, Nagpur. The

petitioners contested the appeal filed by the respondent no. 1 by filing

their reply. The learned Presiding Officer of the School Tribunal

framed the issues on the rival contentions of the parties, namely -

(1) Whether appellant has proved that, his appointment was made as per Section 5 of MEPS Act and Rules thereunder ?

(2) Whether impugned termination order dated 21-2-2013 is

illegal and contrary to law ?

(3) Whether appellant is entitled to get relief as prayed for ?

(4) Whether appeal is maintainable ?

The learned School Tribunal recorded the findings in affirmative. In

the result, the appeal is allowed. The order of termination dated

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21-2-2013 was quashed and set aside and the petitioners were

directed to reinstate the respondent no. 1 i.e. the appellant with

continuity in service and back wages.

5. Shri Shambharkar, learned counsel for the petitioners

vehemently submitted that the judgment and order passed by the

learned Presiding Officer, School Tribunal, Nagpur is unsustainable on

the ground that the learned Presiding Officer failed to appreciate that

the respondent no. 1 has not challenged the termination order but had

challenged only the relieving letter issued to the respondent no. 1. He

further submitted that the learned Presiding Officer also failed to

appreciate that the appeal was filed by the respondent no. 1 belatedly

and after expiry of the appeal period. Shri Shambharkar, learned

counsel placed reliance on the judgment of this Court in the case of

Savitribai Fule Shikshan Prasarak Mandal, Wardha and anr. Vs.

Dhananjay Deoraoji Diwate and ors. reported in 2004(3) Mh.L.J.

18.

6. Per contra, Shri Sudame, learned counsel appearing for

the respondent no. 1 supported the judgment and order impugned in

the petition.

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7. On the backdrop of the rival contentions raised by the

learned counsel appearing for the parties, I have gone through the

material placed on record as well the order impugned in the petition.

Perusal of the material placed on record shows that by an order dated

21-2-2010, the petitioner was appointed as Shikshan Sevak. Perusal

of the appointment order reveals that by scoring of the word

'f'k{k.klsod', word 'dfu"B fyfid' is written in the opening part of the

appointment letter. In the first clause of the appointment order again,

the word 'f'k{k.klsod' is scored off and the word ' dfu"B fyfid' is

written. In the other clauses, there were word ' f'k{k.klsod' is referred

to. The appointment is for a period of two years on a fixed

honorarium of Rs. 2,000/-. An undertaking is also submitted by the

respondent no. 1 in the proforma in respect of undertaking to be

submitted by the candidates appointed as Shikshan Sevak. In the said

undertaking, the word 'f'k{k.klsod' is scored off and the word 'dfu"B

fyfid' is written The communication dated 12-10-2010 placed on

record at Annexure-C shows that the Education Officer (Secondary),

Zilla Parishad, Nagpur granted approval for the appointment of the

respondent no. 1 as Shikshan Sevak. Apart from this material, the

other material which was considered by the learned Presiding Officer,

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School Tribunal is the advertisement issued by the petitioners in a

daily newspaper 'Sakal'. There was also material to the effect that the

respondent no. 1 was possessing the qualification as H.Sc., typing and

passing of computer examination. The School Committee had passed

resolution for the appointment of the respondent no. 1 (i.e. the

appellant before the Tribunal) on 22-2-2010. It was not in dispute

that the respondent no. 1 rendered his services with the petitioners

for three years. The material placed on record also shows that on

21-1-2013, notice was issued to the respondent no. 1. It was

submitted in the notice that the respondent no. 1 was temporarily

appointed as as a Junior Clerk/Shikshan Sevak in the petitioner no. 2 -

school and his services were found unsatisfactory and the services of

the respondent no. 1 expires on 21-2-2013. It is further directed in

the notice to the respondent no. 1 that to hand over school record and

other material to the Head Master/Head Mistress and obtain the

receipt thereof. The learned counsel for the petitioners vehemently

submitted that the learned Presiding Officer of the School Tribunal

failed to appreciate the grounds raised by the petitioner - institute,

namely, the respondent no. 1 has not challenged his termination order

and only challenged the relieving letter dated 21-2-2013 issued to the

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respondent no. 1. On perusal of the order passed by the learned

Presiding Officer, School Tribunal, it reveals that the Presiding Officer

dealt with the submissions of the petitioners while dealing with issue

no. 4. The observations of the learned Presiding Officer reads thus :-

14. Learned advocate for Respondent Nos. 1 and 2 has stated that, appellant has challenged relieving letter and

not specifically challenged termination notice dated

21/01/2013. In support of his contention, he has filed citation reported in 2004(3) Mh.L.J. 18, Savitribai Fule

Shikshan Prasarak Mandal, Wardha and another vs. Dhanjay Deoraoji Diwate and others. Appellant has submitted that, it has been mentioned in termination order

dated 21/02/2013 that, "dk;[email protected] vkns'k". It can

be treated as termination order and not as relieving letter.

8. Shri Shambharkar, learned counsel appearing for the

petitioners before this Court also submitted that the order dated

21-2-2013 is relieving letter and not the termination order.

Shri Shambharkar submitted that in the said letter, the word

'dk;ZeqDr' is used and it is stated in the communication that the

respondent no. 1 on receiving letter shall handover his charge and

keys of the school to head of the institute or the senior teacher in the

school and obtain the receipt thereof and get relieved. Though the

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submission of Shri Shambharkar, learned counsel looks attractive at

first blush, I am unable to accept the submission for the simple reason

that the learned counsel for the petitioners is picking up only one

word of the communication dated 21-2-2013 i.e. dk;ZeqDr. The said

letter dated 21/2/2013 reads "dk;[email protected] vkns'k". It is further

stated in the said letter that the period of three years of the service of

the respondent no. 1 expired on 21-2-2013. It is further stated that

the services of the respondent no. 1 of these three years is

unsatisfactory and the Chief Executive Officer Shri Chandrakant

Gohane by exercising his powers in compliance of notice dated

21-1-2013 is relieving the respondent no. 1 from his post and

terminating him. (emphasis supplied). Thus, it clearly indicates that

the order dated 21-2-2013 is not a relieving letter but is a order of

relieving and terminating services of the respondent no. 1.

9. Perusal of the copy of the appeal memo presented by the

respondent no. 1 shows that the respondent no. 1 in clear words

raised the ground of illegal termination. It is stated in the appeal

memo that on 21-2-2013, school management decided to terminate

the services of the appellant from the post of Junior Clerk. It is

further stated that on 22-2-2013, the appellant was served with the

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termination order. It is further stated that the appellant has put in

service for past three years as Junior Clerk on sanctioned, clear and

vacant post and has become confirmed employee of the school and as

such without following procedure prescribed by the MEPS Act and

Rules, the services of the appellant could not have been terminated by

the management. In the prayer clause of the appeal memo also, the

order dated 21-2-2013 is referred to as a termination order. The

learned Presiding Officer of the School Tribunal recorded an

affirmative finding in respect of appointment of the respondent no. 1

and held that appointment of the respondent no. 1 was made as per

Section 5 of the Maharashtra Employees of Private Schools

(Conditions of Service) Regulation Act, 1977 and Rules thereunder.

10. Shri Shambharkar, learned counsel placed reliance on the

judgment of this Court in the matter of Savitribai Fule Shikshan

Prasarak Mandal, Wardha and another vs. Dhanjay Deoraoji

Diwate and others (cited supra). In the matter of Savitribai Fule

Shikshan Prasarak Mandal, Wardha and another vs. Dhanjay

Deoraoji Diwate and others, it was the case of the management that

initially termination order was issued on 7-4-1996 and the

termination of the respondent had been effected by order dated

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9-4-1996. This Court found that the appellant preferred appeal

challenging the order of termination dated 7-4-1996. The pleadings

were not amended by the appellant to challenge the order of

termination dated 9-4-1996, as such, the Tribunal erred in quashing

the termination order dated 9-4-1996 in absence of any specific

challenge to the order dated 9-4-1996. In the present case,

termination order dated 21-2-2013 was issued and the appellant had

challenged the termination order dated 21-2-2013. The petitioners

submitted that the order challenged by the appellant dated 21-2-2013

is not the termination order but it was the relieving letter. On the

backdrop of these facts, in my opinion, the judgment of this Court in

the matter of Savitribai Fule Shikshan Prasarak Mandal, Wardha

and another vs. Dhanjay Deoraoji Diwate and others is of no help to

the petitioners.

11. The learned counsel for the petitioners also raised the

ground in respect of delay in preferring the appeal by the respondent

no. 1. It was submitted that there is 32 days delay in filing the appeal

as the service of the respondent no. 1 came to be terminated by order

dated 21-2-2013 with effect from 21-2-2013 and the respondent no. 1

filed appeal before the Tribunal on 25-3-2013. Perusal of the appeal

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memo shows that it is submitted in the appeal by the respondent no. 1

that the order of termination dated 21-2-2013 was served on the

respondent no. 1 on 22-2-2013, as such, the appeal filed by the

respondent no. 1/appellant is within limitation. On the backdrop of

this fact even if it is assumed that there was a delay of 32 days in filing

the appeal, this delay was not of such a length to oust the respondent

no. 1 from approaching to the forum i.e. the School Tribunal

against his termination. It is settled position of law that the Court

shall not adopt hyper-technical approach while considering the delay

caused. Considering all these aspects, I am of the opinion that the

learned Presiding officer, School Tribunal, Nagpur committed no

error in allowing the appeal filed by the respondent no. 1. No

interference is warranted in the order impugned in the present

petition. The petition thus, being devoid of merits, deserves to be

dismissed and the same is, accordingly, dismissed.

JUDGE

wasnik