Bombay High Court
Shripad S/O Ghanshyam Satfale vs The State Of Maharashtra, Through ... on 2 September, 2016
Bench: V.A. Naik
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.6488/2015
PETITIONER: Shripad son of Ghanshyam Satfale
aged about 37 years, Occupation -
teacher, resident of Opposite Shani Mandir,
Zenda Chowk, Mahal, Nagpur.
...VERSUS...
RESPONDENTS : 1. The State of Maharashtra, through its
Secretary, School Education Department,
Mantralaya, Mumbai - 32.
2. Education Officer (Primary), Zilla
Parishad, Nagpur.
3. Deputy Director of Education, Nagpur
Region, Nagpur.
4. Headmaster, St. Vincent Primary
School, Medical College, Nagpur.
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Shri A.S. Dhore, Advocate for petitioner
Shri A.M. Kadukar, AGP for respondent nos.1 and 3
Shri Sheikh Majid, Advocate for respondent no.2
Shri Anup Dangore, Advocate for respondent no.4
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CORAM : SMT. VASANTI A NAIK, AND
KUM. INDIRA JAIN, JJ.
DATE : 02.09.2016
ORAL JUDGMENT (PER : SMT. VASANTI A NAIK, J.)
Rule. Rule made returnable forthwith. The petition is heard
finally with the consent of the learned Counsel for the parties.
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By this writ petition, the petitioner seeks a direction against
the respondents to release the arrears of salary from 1.9.2012 till date
and to pay the monthly salary to the petitioner regularly.
The petitioner was appointed on the post of Shikshan Sevak
after following the due process of selection on 28.8.2009. Permission of
the Education Officer was sought by the Management before issuing the
advertisement and appointing the petitioner on the post, after his
selection. The respondent - Education Officer granted approval to the
appointment of the petitioner. On completion of three years of service as
Shikshan Sevak, the Management - Jivandeep Shikshan Sanstha, that had
appointed the petitioner, submitted the proposal of the petitioner for
grant of approval on the post of Assistant Teacher as he has completed
three years of service as a Shikshan Sevak. The Education Officer granted
approval to the appointment of the petitioner on the post of Assistant
Teacher in Jivandeep Shikshan Sanstha. It is stated that after the approval
was granted on 6.3.2013, the petitioner was declared as surplus on
26.3.2014 in Jivandeep Shikshan Sanstha and was absorbed in the
respondent no.4 - School on 23.6.2014. It is stated that though the
respondent no.4 - School has sent the salary bills of the petitioner to the
Education Officer, the Education Officer is not releasing the salary in
favour of the petitioner.
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Shri Majid, the learned Counsel for the respondent no.2 -
Zilla Parishad has opposed the prayer made in the writ petition. It is
stated that Ms. Lalita Mankar was working as an Assistant Teacher in the
School, run by Jivandeep Shikshan Sanstha and after her services were
terminated, the petitioner was appointed in the said vacancy. It is stated
that the appeal filed by Ms. Lalita Mankar before the School Tribunal was
allowed on 21.4.2012 and she was reinstated in the School run by
Jivandeep Shikshan Sanstha. It is submitted that the fact that the appeal
filed by Ms. Lalita Mankar was allowed, was not disclosed by the
Management or the petitioner to the Education Officer and hence,
approval was granted to the appointment of the petitioner by the order,
dated 6.3.2013. It is stated that the Management as well as the petitioner
had given an undertaking to the Education Officer - Zilla Parishad that
the decision of the School Tribunal in the case of Ms. Lalita Mankar would
be binding on the parties. It is stated that despite the aforesaid
undertaking, the fact about the decision in the Tribunal was not conveyed
to the Education Authorities and Jivandeep Shikshan Sanstha continued
the petitioner as well as Ms. Lalita Mankar on the post of Assistant
Teacher. It is stated that the Education Officer is not liable to pay the
salary for two posts. It is, however, not disputed that the petitioner was
directed to be absorbed as a surplus teacher in the respondent no.4 -
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School by the orders of the Education Officer - Zilla Parishad and the
petitioner has worked in the School of Jivandeep Shikshan Sanstha as
also in the respondent no.4 - School, where there is a vacancy, since
26.3.2014. The learned Counsel sought for the dismissal of the writ
petition.
Shri Dangore, the learned Counsel for the respondent no.4
states that the petitioner is working in the respondent no.4 - School after
he was so absorbed in the year 2014 and the salary bills of the petitioner
have been submitted to the Education Officer as the services of the
petitioner are approved. It is stated that in the circumstances of the case,
a direction may be issued against the Education Officer for payment of
salary.
On hearing the learned Counsel for the parties, we find that
a case is made out by the petitioner for issuance of directions against the
Education Officer for payment of the arrears of salary. The petitioner was
appointed on 28.8.2009 as a Shikshan Sevak and after he was absorbed
as an Assistant Teacher on 28.8.2012, the services of the petitioner as an
Assistant Teacher, were approved by the Education Officer on 6.3.2013.
The order of approval, dated 6.3.2013 still stands and the approval to the
appointment of the petitioner is not cancelled by the Education Officer till
date. It is not the case of any of the respondents that the petitioner has
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not rendered service in the School run by Jivandeep Shikshan Sanstha
and the respondent no.4 - School after the absorption of the petitioner in
the respondent no.4 - School, on the directions of the Education Officer.
The Education Officer of the Zilla Parishad has awakened from the deep
slumber after more than two years and has filed an affidavit-in-reply
stating the aforesaid facts for the first time. If the Education Officer is of
the view that the petitioner could not have continued in service after the
appeal filed by Ms. Lalita Mankar was allowed, the Education Officer
ought to have immediately taken steps for cancellation of the approval to
the appointment of the petitioner. Not only was the approval of the
petitioner not cancelled, the Education Officer directed the respondent
no.4 - School to absorb the petitioner as he was declared surplus in the
school run by Jivandeep Shikshan Sanstha. The respondent - Education
Officer, therefore, cannot deny salary to the petitioner on the ground that
his services could not have been approved. If the services of the petitioner
could not have been approved, the Education Officer could have cancelled
the order of approval, dated 6.3.2013 after granting an opportunity of
hearing to the petitioner and the erstwhile Management - Jivandeep
Shikshan Sanstha. However, instead of taking appropriate action for
cancellation of approval, assuming that the facts stated in the affidavit of
the respondent - Education Officer are true and correct, the respondent -
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Education Officer slept over the matter for more than two years till the
petitioner filed the instant petition for a direction against the Education
Officer for payment of arrears of salary. We do not find any condition in
the order of approval, dated 6.3.2013 that the appointment of the
petitioner would be subject to the decision in the appeal filed by
Ms. Lalita Mankar. There is only a condition that if an appeal against the
petitioner is pending before the Tribunal, the order of approval would be
subject to the decision of the Tribunal. Admittedly, no appeal was filed
either by Ms. Lalita Mankar or any other employee against the
appointment of the petitioner in the School run by Jivandeep Shikshan
Sanstha. In the circumstances of the case, the action on the part of the
Education Officer in not paying the salary to the petitioner, is not
acceptable. It would be necessary for the Education Officer to release the
arrears of salary in favour of the petitioner. It is needless to mention that
if the Education Officer so desires, he may take appropriate action against
the petitioner for cancellation of approval after hearing the petitioner and
the other concerned parties. However, in the absence of cancellation of
approval, the Education Officer cannot refuse to release the salary of the
petitioner, more so, when the petitioner is admittedly working in the
respondent no.4 - School.
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Hence, for the reasons aforesaid, the writ petition is
allowed. The Education Officer - Zilla Parishad is directed to release the
arrears of salary for the period from 1.9.2012 till date to the petitioner,
within two months. The Education Officer should continue to pay the
salary to the petitioner, till the services of the petitioner remain approved.
Rule is made absolute in the aforesaid terms with no order
as to costs.
JUDGE JUDGE
Wadkar
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C E R T I F I C A T E
I certify that this judgment uploaded is a true and correct
copy of original signed judgment.
Uploaded by : S.S. Wadkar, P.S. Uploaded on : 07/09/2016
