Nagaon Education Society,Nagaon ... vs Ashok Baburao Patil & Ors
2016 Latest Caselaw 6763 Bom

                                             1




                                                                               
             IN THE HIGH COURT OF JUDICATURE OF BOMBAY   
                         BENCH AT AURANGABAD




                                                       
                            WRIT PETITION NO.1036 OF 2003

    1.     Nagaon Education Society, Nagaon,
           Taluka and Dist. Dhule,




                                                      
           Through its Chairman
           Mr.D.V.Patil,

    2.     Mangesh Sarjerao Salunke,




                                            
           Age-46 years, The Head Master,
           Sant Revagiri Baba Madhyamik 
           Vidyalaya, Dhamane, ig
           Post Dhamane, 
           Taluka and Dist. Dhule                            -- PETITIONER
                             
    VERSUS

    1.     Ashok Bhaurao Patil,
           Age-36 years, Occu-Service,
           Residing at "Swamesh",
      


           Plot No.66-B, SRP Colony No.1,
           Nakane Road, Deopur, Dhule,
   



           Dist.Dhule,

    2.     The Education Officer (Secondary),
           Zilla Parishad, Dhule                             -- RESPONDENT

Mr.Ajinkya Deshmukh h/f Mr.A.V.Hon, Advocate for the petitioners. Mr.S.P.Brahme, Advocate for respondent No.1. Mr.N.T.Bhagat, AGP for respondent No.2.

( CORAM : RAVINDRA V. GHUGE, J.)

DATE : 29/11/2016

ORAL JUDGMENT :

1. The petitioner/Management has challenged the judgment and

order dated 26/02/2003 delivered by the School Tribunal, Nasik by

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which Appeal No.DHL-47/1998 filed by respondent No.1 / employee

was allowed and he was granted reinstatement as a full time assistant

teacher with continuity and full back wages.

2. This Court had heard the learned Advocate for the petitioner/

Management extensively and by passing a detailed order, had recorded

that the challenge of the petitioner was restricted to the extent of the

direction granted by the Tribunal to reinstate the respondent as a full

time teacher, instead of as a part time teacher.

3. It would be apposite to reproduce the order dated 26/03/2003

passed by this Court as under :-

"The petitioner has filed instant petition challenging the judgment and order passed by the School Tribunal granting reinstatement to the respondent No.1 as Full-Time Assistant Teacher and

granting back wages as a Part-time Assistant Teacher. The Tribunal has held that the respondent No.1 was appointed in the employment of the petitioner since 1991 and continued as Assistant teacher till the end of Academic Year 1995-96. In the

year 1996-97, the respondent No.1 was continued as Part-time Assistant Teacher. The Education Officer had also granted approval for the said academic session to the respondent No.1 as a Part-timer. It is also observed in the approval order that the same was consequent upon a written consent given by the respondent No.2 to work as a part-timer. The same position

khs/NOV.2016/1036-d

continued in the next academic session and the respondent No.1 was continued as part-timer. The services of the respondent No.1

came to be terminated from 27/09/1998 by an oral order and aggrieved thereby, the respondent no.1 moved the Tribunal.

The learned counsel Shri Hon, appearing for the petitioner

has mainly attacked that part of the order passed by the Tribunal, by which, reinstatement has been granted to the respondent No.1 as Full-time Assistant Teacher. He submits that

on the date, on which services of the respondent No.1 were

allegedly terminated, admittedly, the respondent No.1 was working as Part-time Assistant Teacher and as such, the Tribunal

had jurisdiction only to direct reinstatement in the post, which the respondent No.1 held, at the time of termination of his service. In my view, there is substance in the said submission. Prima facie,

no fault can be found with the order passed by the Tribunal directing reinstatement with back wages. IN my opinion, ends of

justice would be met by directing reinstatement of the respondent No.1 as a Part-time Assistant Teacher and that part of the order,

which directs reinstatement of the respondent No.1 as Full-time Assistant Teacher, need to be stayed, subject to payment of back wages as directed by the Tribunal's order dated 26.2.2003. Hence I pass the following order :-

Rule.

That part of the order passed by the School Tribunal, dt.26.2.2003, is stayed, which directs reinstatement of the respondent No.1 as Full-time Assistant Teacher, subject to the following conditions :-

(a) That the petitioner shall reinstate the respondent No.1 as

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Part-Time Assistant Teacher;

(b) Petitioner shall deposit back wages of the respondent No.1

(taking into consideration last drawn salary of respondent no.1) in this Court, within a period of 4 weeks from today."

4. Mr.Brahme, learned Advocate appearing on behalf of the

respondent/employee submits with all solemnity that despite the

directions of this Court to the petitioner to reinstate the respondent as

a Part Time Assistant Teacher, he did not join duties for the reason

that he was suffering from "Emuno Compromized" HIV+ illness. The

intensity of the illness 13 years ago was grave and the employee was in

a serious condition. Over the years, upon being treated, he was

successful in curbing the progress of the said illness. In these last 13

years, on account of no earnings and expenditure on his medical

treatment, he is presently in abject poverty. He, therefore, submits

that the respondent is willing to rejoin as a part time teacher by

accepting the portion of the back wages deposited in this Court and by

making a statement that he would not claim any further monetary

benefits. Notional continuity in service may be granted.

5. He further submits that the petitioner/management has about

20 schools and the respondent/employee would be accommodated in

any of these schools. If the situation is such that there is not a single

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vacancy available or there is no likelihood of any vacancy being

created in the near future, the employee could be treated as surplus

and his proposal for absorption elsewhere could be forwarded to the

Education Department.

6. Learned Advocate for the petitioner submits that as on date,

there is no vacancy available. However, the Management has no

reservation in forwarding the proposal of the said employee for being

treated as surplus and for absorption wherever vacancy will arise.

7. In the light of the above and in the light of the order of this

Court dated 26/03/2003, this petition is partly allowed. The

impugned order of the School Tribunal is modified only to the extent of

the direction to reinstate the respondent/employee as a Part Time

Teacher with continuity from the date of his oral termination

27/09/1998. Except the amount deposited in this Court by the

petitioner, the respondent / employee would not be entitled for any

back wages.

8. The petitioner shall endeavour to accommodate the employee in

any of its schools depending upon the vacancy and in the event there

is no vacancy or that there is no possibility of a vacancy arising in the

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near future, the petitioner may forward the proposal to the Education

Department so as to enlist the respondent No.1/employee in the list of

surplus teachers. Needless to state, if any vacancy arises in the

subject of Physical Education in any of the schools of the petitioner

society, it shall be under an obligation to address the Education

Officer under the Proviso to Section 5(1) of the MEPS Act for

requesting the absorption of the respondent No.1/employee on such

position, if in the event by that time, respondent No.1/employee has

not been absorbed elsewhere.

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

10. The respondent No.1 / employee shall file an application duly

identified by the learned Advocate alongwith a copy of the Election

Commission Voter ID card for seeking withdrawal of the amount

deposited alongwith accrued interest.

11. All pending civil applications do not survive and hence stand

disposed of.

( RAVINDRA V. GHUGE, J.)

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