Bombay High Court
Prakash Pandit Pawar vs Chalisgaon Education Society ... on 23 November, 2016
Bench: R.V. Ghuge
*1* 3.wp.6693.15
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 6693 OF 2015
Prakash s/o Pandit Pawar,
Age : 34 years, Occupation : Service,
R/o At Valvhe, Post Amkhel,
Taluka Sakri, District Dhule.
...PETITIONER
-VERSUS-
1 Chalisgaon Education Society,
Chalisgaon.
C/o B.P.Art, S.M.A. Science and
K.K.C. Commerce College and
K.R. Kotkar Junior College,
Chalisgaon, District Jalgaon.
2 The Head Master,
K.R.Kotkar Junior College,
Chalisgaon, District Jalgaon.
3 The Chairman,
Junior College Committee,
Chalisgaon Education Society,
Chalisgaon, District Jalgaon.
4 The Deputy Director of Education,
Nashik Region, Nashik.
...RESPONDENTS
...
Advocate for Petitioner : Shri Gangakhedkar Shailendra S.
Advocate for Respondent Nos.1 to 3 : Shri R.J.Godbole.
AGP for Respondent 4 : Shri S.N.Kendre.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 23rd November, 2016
*2* 3.wp.6693.15
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 and order dated
26.03.2015 delivered by the School Tribunal, Nashik by which his Appeal
No.42/2012 has been dismissed.ig
3 While issuing notice, I had heard the submissions of the
learned Advocates for the respective sides on 18.10.2016 and I had
recorded the undisputed factors in my order dated 18.10.2016, which
reads as under:-
"1 I have heard the learned Advocates for the Petitioner
and Respondent Nos.1 to 3 / Management.
2 There is no dispute insofar as the following aspects:-
(a) An advertisement dated 10.07.2009 was published by
the Respondent/ Management indicating that the post
of Biology for a full time teacher is reserved for the
Scheduled Tribe category.
(b) The Petitioner belongs to the Scheduled Tribe category
and has a certificate of validity dated 21.11.2002
issued by the Committee for Scrutiny and Verification
of Tribe Claims, Nashik Division.
(c) By appointment order dated 07.08.2009, the
Petitioner was appointed as a Shikshan Sevak as per
the said advertisement for the tenure of 07.08.2009
till 06.08.2012.
(d) On 06.08.2012, the Petitioner has been terminated
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on the ground that he has become surplus as the
strength of students has fallen.
(e) The Government Resolution dated 09.04.2013 would
indicate at clause (8) that if a person belonging to
ST/SC category is to be declared surplus, he should be
absorbed in the same Institution so as to ensure that
backlog does not grow. Such a candidate cannot be
declared as a surplus.
3 I find from the impugned order that rather than
considering the issue as to whether, the Petitioner/
Appellant could have been declared surplus or not, the
School Tribunal has misdirected itself by concluding
in paragraph 23 that the appointment order does not
disclose whether, he is from any reserved category.
4 Shri Godbole, learned Advocate for the Respondent/
Management submits that he would require some
time to prepare himself on the issue as to whether, the
removal of the Petitioner has led to growth in the
backlog for reserved categories.
5 By consent of the parties, stand over to 26.10.2016 in
the supplementary board.
6 Until further orders in this matter, Respondent Nos.1
to 3/ Management shall not appoint any teacher in
the subject of Biology."
4 I have heard the learned Advocates extensively today.
5 There is no dispute that the Petitioner was appointed on
07.08.2009 as a Shikshan Sevak for a probation period of three years and
he was disengaged on 01.06.2011 when the workload was not available in
his subject. The Management has specifically taken a stand before the
School Tribunal that the Petitioner cannot be continued in employment
since the workload has fallen and as he is a temporary employee, he
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cannot be given preference as against a permanent employee while
dealing with the issue of fall in workload.
6 There can be no dispute as regards the contention of Shri
Gangakhedkar, learned Advocate for the Petitioner, that in the face of a
fall in the workload, the Management has to consider the roster of
reservation and has to ensure that the removal of a teacher/ employee
from the reserved category on the ground of surplusage, should not lead
to a growth in the backlog. However, Rule 27(e) of the MEPS Rules, 1981
specifically provides that while retrenching an employee, the members of
a backward class already in service should not be retrenched though liable
to be retrenched according to their seniority. It also provides that in
between permanent and temporary employees in the face of a need to
cause retrenchment on the ground of surplusage, a temporary employee
shall be retrenched, irrespective of the fact that he belongs to the
backward class.
7 Shri Godbole, therefore, submits that as the workload had
fallen, the Petitioner was required to be retrenched and since he was a
temporary employee, who had worked for only one year and nine months
and was not a deemed permanent employee, the Management could not
have disturbed the permanent employees.
*5* 3.wp.6693.15
8 The School Tribunal has considered this aspect in paragraph
22 of the impugned judgment when it recorded a finding on facts that the
Petitioner had worked for 11 months in the academic year 2009-2010 and
because of the inadequate number of students and reduction of workload,
he was working on Clock Hour Basis in the academic year 2010-2011. It is
also noted that out of the workload of 65 hours, 26 hours were allotted to
the senior teacher Shri B.R.Yeole and equal number of hours were allotted
to another senior teacher by name Shri S.S.Patil, in the academic year
2010-2011. In the academic year 2011-2012, the workload for the subject
of Biology was reduced to 52 hours and as such, Shri Yeole and Shri Patil
had shared the said workload as per the rules and the Petitioner was left
with no workload at all.
9 I have noted the submissions of Shri Godbole, learned
Advocate for the Management that the request for new recruitment was
not in relation to the subject of Biology. In the light of the above, the
contention of the Petitioner cannot be accepted that the permanent
teachers should be dislodged and he should be retained in service
inasmuch as it cannot be accepted that the Management is proceeding to
recruit fresh hands for the same subject of Biology.
*6* 3.wp.6693.15
10 In the light of the above, I do not find that the impugned
judgment of the School Tribunal could be termed as being perverse or
erroneous. The Writ Petition is dismissed. Rule is discharged.
11 However, it needs mention that since the Petitioner has been
disengaged purely on the ground that the workload for the post of Biology
was not available for the Full Time Teacher and which post was earlier
reserved for Scheduled Tribe category, in the event in future, if such post
in the said subject is available on account of rise in the workload, the
Petitioner shall be entitled to apply for the same and in such eventuality,
the Management shall consider his claim preferentially for appointment in
service.
kps (RAVINDRA V. GHUGE, J.)
