Bombay High Court

Anil Govindrao Korde vs Siddeshwar Krida Mandal, Sillod ... on 8 September, 2016

Bench: R.V. Ghuge

                                                                                   wp8134-2012
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                        IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                                   BENCH AT AURANGABAD




                                                                               
                                   WRIT PETITION NO.8134 OF 2012




                                                       
     Anil S/o Govindrao Korde,
     Age-36 years, Occu-Service,
     R/o Maniknagar, Sillod, Taluka Sillod,
     Dist.Aurangabad                                            -        PETITIONER




                                                      
     VERSUS

     1.       Siddeshwar Krida Mandal, Sillod,
              Taluka Sillod, Dist.Aurangabad,




                                            
              Through its President,
              Nagnath S/o Ganpatrao Thakur,
                             
              Age-53 years, Occu-Service,
              R/o Bhushannagar, Pundliknagar-50,
              Garkheda Area, Aurangabad,
                            
     2.       Raneshwar Vidyalaya, Hatti,
              Taluka Sillod, District : Aurangabad,
              Through it's Head Master,

     3.       The Education Officer (Secondary),
      


              Zilla Parishad, Aurangabad,
   



     4.       Shivaji S/o Bajirao Dabhade,
              Age-33 years, Occu-Service,
              R/o Maniknagar, Sillod,
              Taluka Sillod, District Aurangabad,





     5.       The Administrator,
              Siddheshwar Krida Mandal, Sillod,
              C/o Rameshwar Vidyalaya Hatti,
              Tq.Sillod, Dist.Aurangabad,





     6.       Dy.Director of Education,
              Aurangabad.                                       -        RESPONDENTS

     Mr.S.S.Jadhavar, Advocate for the petitioner,
     Mr.V.V.Bhavthankar, Advocate for respondent No.1,
     Mr.S.D.Kaldate, AGP for respondent Nos. 3 to 6,
     Mr.Shrikrishna Shinde, Advocate for respondent No.4,
     Respondent Nos.2 and 5 served.

                                            CORAM : RAVINDRA V. GHUGE, J.

Reserved on : August 22, 2016 Pronounced on : September 8, 2016

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JUDGMENT :-

1. Rule. Rule made returnable forthwith and heard finally by the

consent of the parties.

2. The petitioner has challenged the judgment and order dated 3.9.2012

passed by the School Tribunal, Aurangabad by which his

Appeal No.18/2009 has been dismissed. The petitioner has also challenged

the order dated 22.4.2013 passed by respondent No.6 Deputy Director of

Education, Aurangabad.

3. The contentions of the petitioner can be summarized as follows :-

[a] After following the due procedure of law, the petitioner was

appointed as an 'Assistant Teacher' in respondent No.2 school from 25% Graduates' quota.

[b] After completion of his probation of 2 years, he was granted

permanency.

[c] Respondent No.3/Education Officer granted approval to the permanent appointment of the petitioner.

[d] In WP No.5184/2007, the Education Officer was directed to consider

the grievance of the petitioner.

[e] The appointment of the petitioner was declared to be valid by the directions of the Education Officer dated 25.3.2009 and the appointment of respondent No.4 was held to be invalid. [f] Respondent No.4 is the son of the President of respondent No.1 / Management.

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[g] Upon being annoyed by the above, and since his son could not be

accommodated, the President and the Secretary of the Institution terminated the permanent services of the petitioner by order dated

22.4.2009.

[h] Prior to terminating the permanent service of 10 years of the petitioner, he was not given an opportunity of hearing.

[i] The petitioner filed Appeal No.18/2009 on 8.5.2009. [j] During the pendency of the appeal, the Administrator was appointed on the Management of the society.

[k] Respondent No.4/Son of the President sought intervention in the

appeal before the Tribunal, which was permitted. [l]

The Management raised the issued of unlawful appointment of the petitioner after 10 years.

[m] Question of legality of the petitioner's appointment was entertained

by the School Tribunal after 10 years and by the impugned judgment dated 3.9.2012, the appeal was dismissed.

[n] The School Tribunal lost sight of the fact that the MEPS Rules

prescribing a procedure to terminate an employee, was not followed

by the Management, that the Management was estopped from challenging the appointment of the petitioner after 10 years, that no opportunity of hearing was given to the petitioner and an unlawful

resolution was passed.

[o] On 25.3.2009, the Education Officer considering the objections raised by respondent No.4 / son of the President delivered a detailed and well reasoned order running into about more than 50 paragraphs

thereby concluding that the appointment of the petitioner was perfectly legal and proper and the appointment of respondent No.4 / son of the President was made illegally and hence his continuance in service would be subject to the pleasure of the Management. [p] This order of the Education Officer was challenge by respondent No.4 in WP No.1615/2010. No interim relief was granted to respondent No.4 by this Court.

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[q] Respondent No.4 filed a civil application No.5885/2011 seeking an

order from this Court by way of a direction to the Administrator to pay the monthly salary of respondent No.4.

[r] When this Court indicated its inclination to reject the civil application, respondent No.4 withdrew the application and which has been disposed of by order dated 19.3.20012.

[s] WP No.1615/2010 is still pending before this Court in relation to the order of the Education Officer dated 25.3.2009. [t] Despite the above fact, respondent No.6 herein entertained the representation of respondent No.4 and by a cryptic order dated

22.4.2013, directed the Education Officer to reconsider the

appointment of the petitioner.

4. Learned Advocate for the Management Mr.Bhavthankar has

strenuously supported the impugned order. His contentions can be

summarized as follows :-

[a] The subsequent appointment order of the petitioner dated 18.8.2003 was converted into a temporary appointment.

[b] The petitioner has accepted the said order.

[c] The approval granted does not have the outward number of the Zilla Parishad.

[d] The monthly salary of the petitioner has been paid from the salary grants and after they were sanctioned by the Education Officer.

[e] It is true that the Management did not assail the appointment of the petitioner from 1999 till 2008 when the Management raised its objection.

[f] The Education Officer is to be held responsible for having supported the petitioner.

[g] The order dated 25.3.2009 passed by the Education Officer has not been implemented.

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[h] Respondent No.6 Deputy Director of Education is a higher authority

and hence he has the scope and jurisdiction to decide the legality of the order of the Education Officer.

[i] The petitioner was appointed in suspicious circumstances. [j] Though respondent No.1 is the son of the President, his appointment was pursuant to the advertisement dated 20.6.2001 published in

'Dainik Tarun Bharat'.

[k] After conducting the interviews on 24.6.2001, respondent No.4 was appointed as a 'Assistant Teacher'.

[l] Two more persons namely Sanjay Shrikhande and G.B.Wagh have

been appointed alongwith respondent No.4.

[n]

[m] The approval granted to respondent No.4 is on 'No grant basis'.

By order dated 24.9.2003, the approval of the petitioner was rejected.

[o] The subsequent approval dated 16.1.2006 submitted by the petitioner is a forged document.

[p] The affidavit in reply filed by the Deputy Education Officer namely

Madhukar Kisanrao Deshmukh dated 30/04/2008 indicates in

paragraph No.12 that the appointment of respondent No.4 was legal and proper.

[q] The petition, therefore, deserves to be dismissed.

5. Mr.Shinde, learned Advocate for respondent No.4 has adopted the

entire submissions of the Management and he further submits that

respondent No.6 has rightly set aside the order dated 25.3.2009 passed by

the Education Officer. The impugned order dated 22/04/2013 is legal and

proper. The Deputy Director has rightly ordered that since the petitioner

has prepared a forged approval, the same deserves to be quashed and set

aside. In this backdrop, this petition deserves to be dismissed.

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6. The learned AGP relies upon the affidavit in reply filed by the

Education Officer Bhagwan Shridharrao Sonawane dated 25/02/2016. He

submits that the appointment of the petitioner from 1999 is illegal as the

appointment order does not bear the signatures of the President of the

Management. A member of the Management had signed the first

appointment order. The order of permanency dated 18.8.2003 does not

bear any outward number. As per the staffing pattern, the post of B.P.ed

in 1989 was not approved and hence the petitioner was not eligible. He

further submits that the Education Officer did not grant individual approval

to the petitioner since the forged approval did not bear the outward

number.

7. He then submits that since the learned Division Bench of this Court in

WP No.5971/2012 filed by respondent No.4, had directed the Deputy

Director of Education to decide the representations filed by respondent

No.4, that, respondent No.6 Deputy Director has gone into the allegations

against the petitioner and has concluded that it appears that the

appointment of the petitioner as a permanent employee is based on a

forged approval.

8. I have considered the submissions of the learned Advocates and have

gone through the petition paper book with their assistance.

9. In so far as the issue of raising a challenge to the appointment of the

petitioner is concerned, it is apparent that he had worked for 9 years, had

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regularly performed his duties of imparting education and was granted

permanency and regular monthly salary from the salary grants. It was only

after respondent No.4, who is son of the President of the Institution

developed interest in the post of Head Master, that he and his father raised

issues about the legality of the appointment of the petitioner.

10. This Court, dealt with a similar case in the matter of Trimurti Balak

Mandir Shikshan Sanstha Vs. Smt.Vithabai Bhikan Desale in WP No.9329/2015

employee.

and by judgment dated 22/03/2016, set aside the termination of the

It was held that the employer was precluded/estopped from

raising the ground of illegal appointment after 6 years (in the said case).

11. In the instant case, the petitioner has worked for about 10 years.

After respondent No.4 developed interest in becoming the Head Master, he

and his father raised objections about the appointment of the petitioner

and it was at this juncture that the dispute arose in the litigating sides.

12. By order dated 25/03/2009, the Education Officer extensively dealt

with the objections raised by respondent No.4 as against the petitioner's

appointment. In a detailed order comprising of more than 50 paragraphs,

the Education Officer dealt with each and every objection raised by

respondent No.4 and supported by his father President of the Institution. It

was concluded that the appointment of the petitioner was in accordance

with Law and from the 25% Graduate Teachers' quota. This order was

challenged by respondent No.4 in WP No.1615/2010 and the learned Division

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Bench of this Court declined interim relief to respondent No.4 by its order

dated 5.10.2010. The Civil Application No.5887/2011 filed by respondent

No.4 seeking salary from the salary grants was not granted and the civil

application was disposed of on 19.3.2012.

13. In the above backdrop, respondent No.4 filed a representation within

two weeks on 4.4.2012 before respondent No.6 and then preferred WP

No.5971/2012 before the learned Division Bench of this Court seeking a

4.4.2012.

direction to respondent No.6 to decide his pending representation dated

After going through the memo of the petition No.5971/2012, I

find that respondent No.4 has shrewdly suppressed the fact from the

learned Division Bench that the Education Officer has already dealt with the

objections of respondent No.4 by delivering an order on 25.3.2009 and

respondent No.4 had already challenged the said order in WP No.1615/2010

which petition is still pending before the learned Division Bench.

14. It is, therefore, obvious that writ petition No.5971/2012 has been

disposed of by order of the learned Division Bench dated 8.12.2012 directing

the Deputy Director to decide the representation of respondent No.4, since

respondent No.4 did not bring it to the notice of the learned Division Bench

that the similar dispute was already adjudicated upon by the Education

Officer and the said issue was subjudice in WP No.1615/2010.

15. Considering the above, the impugned order dated 22.4.2013 passed

by respondent No.6 Deputy Education Officer is therefore quashed and set

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aside. It be noted that the objections raised by respondent No.4 and the

Management with regard to the petitioner shall be subject to the decision

of the learned Division Bench in WP No.1615/2010.

16. The impugned order dated 22.4.2009 has been passed without

hearing the petitioner and without adhering to the principles of natural

justice and the MEPS Rules, 1981. It cannot be overlooked that the decision

of the Education Officer dated 25.3.2009 which is subject matter of

adjudication in WP No.1615/2010 was delivered about 4 weeks prior to the

issuance of the termination order dated 22.4.2009. As such, on the date of

issuance of the termination order, the Education Department had sustained

the appointment of the petitioner as being legal and proper. The order of

the Deputy Director of the Education dated 22.4.2013, which has been

quashed in this judgment has been delivered after 4 years from the date of

termination. In short, as on date of the termination, there was no decision

by any authority so concluding that the appointment of the petitioner is

illegal.

17. Rule 16(3) of the MEPS Rules, 1981 provides that if a permanent

employee is absent from duty without leave continuously for a period

exceeding 3 years, he shall be deemed to have abandoned his service.

Besides this provision, Rule 28 is the only provision by which the service of a

permanent employee can be terminated. Rule 28 therefore, enables the

Management to terminate a permanent employee only on the ground of mis-

demeanor or commission of misconduct. Rule 25-A and 26 provide for

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retrenching a permanent employee on account of abolition of posts.

18. In the instant case, the stand taken by the Management would not

fall under Rule 16 or 25-A or 26. The Management has suo-motu concluded

that the appointment of the petitioner is illegal by its termination order

dated 22.4.2009 despite the order of the Education Officer dated 25.3.2009

on the complaint filed by the father of respondent No.4, that the

appointment of the petitioner is legal and sustainable. Yet, the same

President Bajirao Trambakrao Dabhade, father of respondent No.4 has

apparently terminated the service of the petitioner highhandedly and

without any adherence to the rules applicable and the principles of natural

justice.

19. In my view, the above recorded factors have been totally lost sight of

by the School Tribunal thereby rendering the impugned judgment

unsustainable. On these premise, the reliance placed by respondent Nos.1

and 4 on the judgments of the Hon'ble Apex Court in the matter of

Nagendra Chandra and others Vs. State of Zarkhand and others [(2008) 1

SCC 798], Ashok Kumar Sonkar Vs. Union of India and others [(2007) 4 SCC

54], State of MP and others Vs. Shyama Pardhi etc. [AIR 1996 SC 2219] and

the judgments of this Court in the matter of Priyadarshini Education Trust

and others Vs. Ratis (Rafia) Bano Abdul Rasheed and others [2007(6) ALL MR

238], Rayat Shikshan Sanstha and another Vs. Yeshwant Dattatraya Shinde

[2009(6) Mh.L.J. 475] and Chandramani Devraj Tiwari Vs.Secretary,

Smt.R.B.Tiwari Sanskrutik Kendra and others [2008(3) Mh.L.J. 274] is

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misconceived. After 10 years of permanent service by the petitioner and

without any challenge from the Management for 9 years, renders the action

of termination illegal and unsustainable.

20. As such, this petition is allowed. The impugned order of the School

Tribunal dated 3.9.2012 and the impugned order passed by respondent No.6

dated 22.4.2013 are quashed and set aside. Consequentially, the

termination of the petitioner by order dated 22.4.2009 is quashed and set

aside. He shall stand reinstated in service with continuity w.e.f. the date of

his termination.

21. In so far as the back wages are concerned, I am granting 50% back

wages to the petitioner in the light of the judgment of the Hon'ble Supreme

Court in the matter of Nicholas Piramal India Ltd., Vs. Hari Singh 2015(2)

CLR 468. These back wages shall be calculated at the rate of the last drawn

gross salary with allowances, that was payable to the petitioner at the time

of his termination and shall be paid by the Management since the effect of

the illegalities committed by the Management shall be suffered by the

Management. The Education department or the State shall not bear this

burden of back wages.

22. This petition is, therefore, partly allowed and Rule is made partly

absolute in the above terms.

23. Before parting with this judgment, I am constrained to observe on

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the tendency of the Management of private Educational Institutions

appointing their close relatives in the same institution and terminating

inservice teachers on frivolous grounds only to pave way for recruiting their

kith and kin. It is in several cases that this Court has noted various types of

disputes between employees of the institution and the Managements, which

are illustrated as follows :-

[a] Existing Management appoints its kith and kin as employees of the

same Institution by terminating an inservice candidate. [b] Succeeding Management terminates the said appointees appointed by

the earlier Management on the ground that they are the kith and kin of the earlier Management and were illegally appointed.

[c] Terminating employees, who have been working as permanent employees for 5 years, 10 years and even 15 years (See judgment of this Court dated 29.7.2015 in the matter of Balasaheb Ramchandra Burke Vs. The President, Bahujan Samaj Prabodhan Shikshan Sanstha

and others, WP No.485/2015 and connected group of matters), so as

to accommodate the kith and kin of the Management. [d] Appointing sons, daughters, son-in-law, daughter-in-law, brother, sister etc. of the President or Secretary of the Educational

Institution, in the same institution.

24. This Court has dealt with several matters of the kinds mentioned

above, which has led to a spate of service disputes. The instant case is also

one example of such kind. Recently, this Court has dealt with a similar case

in the matter of the Head Master, Vivekvardhini Madhyamik Vidyalaya Vs.

Alka Namdeo Khalekar and others, WP No.4999/2016 with WP

No.5826/2016, decided on 29/08/2016.

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25. It, therefore, appears that in several cases, the members of the

Managing Committee and especially the President or the Secretary of the

Management, have gone out of the way and orchestrated the appointment

of their kith and kin in the same institution. It is noticed in several cases

that existing teachers, who have settled in employment, have been

terminated after several years of permanent service on the ground that

their initial appointment, made 10 to 15 years ago, was illegal. After

terminating their services, the kith and kin of the Management are

appointed in their place. The proviso to Section 5(1) of the MEPS Act, 1977

is blatantly violated. In a recent judgment delivered by this Court in the

matter of Vasant Shikshan Prasarak Mandal through its President and others

Vs. The State of Maharashtra and others in WP No.9076/2016 decided on

31/08/2016, this Court has directed the Principal Secretary, Department of

School Education and Sports, State of Maharashtra, Mantralaya, Mumbai-32

to ensure the scrupulous compliance of the proviso to Section 5(1) and

thereby mandate the private schools to absorb the eligible surplus teachers

from the list maintained by the Zilla Parishad.

26. The Kerala Education Rules, 1959, which are in vogue in the State of

Kerala have created an embargo on the recruitment of persons connected

with the Management. Rule 2(8) of the Kerala Education Rules, 1959

defines "Management" as Management shall have the meaning as 'Manager'.

27. Rule 3 of the Kerala Education Rules, 1959 pertaining to the

"Management", reads as under :-

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"Management to be vested in a Manager :-

(1) The Management of every aided school may be vested by the Educational Agency in a person who shall be referred to as the

Manager and who shall be responsible to the department for the Management of the institution.

(2) In the case of aided institutions under individual

management, the individual proprietor may be the Manager. (3) In the case of aided institutions under Corporate management, the proprietary body may choose the Manager in accordance with the rules in that behalf referred to in Rule 2.

(4) The Educational Agency shall be bound by the acts of the Manager."

28. Rule 8 of the Kerala Education Rules, 1959 reads as under :-

"8. Persons connected with Management not to be appointed in schools -

(1) No person who is a manager or member or other office bearer of the

Managing body, if any referred to in Rule 2, shall be eligible for any

appointment in that school or any other school under the same Educational Agency :

Provided that Managers or members, or other office-bearers

of the Managing body working as teachers including Headmasters when these Rules come into force, may continue to do so :

Provided further that the sub-rule (1) does not apply to a

staff or Teacher's Committee wherein the members of the staff or teacher's of a school including the Headmaster are members.

(2) No employee of the Government or of a local body or of an undertaking, Company or Corporation owned or controlled by the Government shall be the manager or a member or other office bearer of the managing body, if any, of a school unless it is in ex- officio capacity. [Provided that this sub-rule shall not apply to part

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time Government servants other than those employed in schools.]

(3) A student in an institution shall not be permitted to be the manager or a member, or an office bearer of the managing body, if any, of

that institution.

[(3A) No person who is convicted by a court for an offence involving moral turpitude shall be eligible for appointment as manager or a

member of the managing body.] (4) The Manager of an aided school shall be literate, solvent and interested in educational progress. The Educational Agency of a recognized school shall be solvent and shall also be interested in

educational progress."

29. Considering the overall situation in the light of the cases dealt with

by this Court under the MEPS Act and the Rules, the time has come for the

State of Maharashtra to create some embargo or restriction on the private

managements of the school and educational institutions from recruiting

their kith and kin in the same school. The urge and the desire to appoint

kith and kin in the same institution appears to be a major cause of litigation

in service matters under the MEPS Act.

30. This Court is aware that the Courts cannot legislate. In this backdrop,

I deem it proper to recommend to the State of Maharashtra through its

Secretary, Department of School Education and Sports, State of

Maharashtra, Mantralaya, Mumbai-32 to consider the disturbing prevailing

situation in the light of the observations of this Court in this matter as well