Bombay High Court
Arpan Shikshan Prasarak Sanstha ... vs The Education Officer (Primary), ... on 26 September, 2016
Bench: V.A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.6842 OF 2015
1) Arpan Shikshan Prasarak Sanstha,
through its President Shri Rameshwar
s/ Ramchandra Rahiwase.
2) Indira Gandhi Primary School,
through its Head Master Shri Ashok
s/o Wamanrao Gadve,
Both residents of Pannalal Bagicha,
Amravati. ... Petitioners
- Versus -
1) The Education Officer (Primary),
Zilla Parishad, Amravati.
2) Kum. Lalita d/o Ramchandra Chawane,
c/o Suresh Pahade, near Santoshi
Mata Temple, Nawathe Nagar,
Amravati. ... Respondents
-----------------
Shri Anand Parchure, Advocate for petitioners.
Shri P.A. Kadu, Advocate for respondent no.1.
Shri P.S. Patil, Advocate for respondent no.2.
----------------
CORAM : SMT. VASANTI A NAIK AND
KUM. INDIRA JAIN, JJ.
DATED : SEPTEMBER 26, 2016
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ORAL JUDGMENT (PER SMT. VASANTI A NAIK
, J.) :
Rule. The rule is made returnable forthwith. The writ
petition is heard finally at the stage of admission with the consent of the
learned Counsel for the parties.
By this writ petition, the petitioners challenge the order of the
respondent no.1 Education Officer, dated 2/2/2015, rejecting the prayer
of the petitioners for releasing the amount payable to the respondent no.2
towards 25% back wages as per the judgment dated 9/9/2014 in Writ
Petition No. 6278/2005.
The petitioner no.1 is an educational society that runs the
petitioner no.2 School in which the respondent no.2 was appointed as an
Assistant Teacher in the year 1997. The Education Officer granted
approval to the appointment of the respondent no.2. Since the approval
was restricted for a limited period, the services of the respondent no.2
were terminated by the petitioner Society. The respondent no.2 preferred
an appeal against the order of termination before the School Tribunal,
Amravati under the provisions of the Maharashtra Employees of Private
Schools (Conditions of Service) Regulation Act, 1977. The appeal was
dismissed by the School Tribunal on 10/11/2005. The respondent no.2
filed Writ Petition No.6278/2005 against the judgment of the School
Tribunal. By the judgment dated 9/9/2014, the writ petition filed by the
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respondent no.2 was partly allowed and the Management was directed to
reinstate the respondent no.2 in service with 25% back wages from
27/7/1999 till the date of her reinstatement. The petitioner Society
reinstated the respondent no.2 in service in pursuance of the said
judgment, however, the back wages were not paid by the petitioners to
the respondent no.2. A representation was made by the petitioners to the
Education Officer for releasing the amount payable to the respondent no.2
towards 25% back wages in accordance with the directions of the High
Court in the judgment dated 9/9/2014, but the said representation was
rejected by the order dated 2/2/2015. The petitioners have challenged
the said order in the instant petition.
Shri Parchure, the learned Counsel for the petitioners, submits
that the services of the respondent no.2 were terminated only because
approval was granted to her services for a limited period. It is stated that
the School Tribunal had dismissed the appeal filed by the respondent no.2
and the writ petition filed by the respondent no.2 against the order of the
School Tribunal was partly allowed and the petitioner Society was
directed to reinstate the respondent no.2 in service with 25% back wages.
According to the learned Counsel, the respondent no.2's services were
dispensed with before the expiry of the period of probation on the ground
of unsatisfactory work as approval to her appointment was granted for a
limited period. It is submitted that though a direction is issued to the
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petitioner Society to pay the back wages, the primary responsibility to pay
the same would be on the State Government when the School in which
the respondent no.2 was appointed is a grant-in-aid School and the
respondent no.2's services were duly approved. It is submitted that as
held by the Hon'ble Supreme Court in the case of Educational Society,
Tumsar and others vs. State of Maharashtra and others (2016 (2)
ALL MR 947 (S.C.), as per normal principle, the Government would be
liable to bear the burden of payment of salary and other dues of the
employee when the post for which the same is payable is approved in a
grant-in-aid School. It is submitted that in view of the aforesaid position
of law, the Education Officer may be directed to pay 25% back wages to
the respondent no.2 as per directions in Writ Petition No.6278/2005,
more so when the petitioners had not appointed any other person as an
Assistant Teacher in the vacancy that was caused due to the termination of
the services of the respondent no.2.
Shri Kadu, the learned Counsel for the respondent no.1,
supports the order of the Education Officer, dated 2/2/2015 and submits
that since this Court had directed the petitioners in Writ Petition
No.6278/2005 to pay 25% back wages to the respondent no.2, the
petitioners would be solely liable to pay the said dues to the respondent
no.2. It is stated that the petitioners have filed an application for seeking
a review of the judgment dated 9/9/2014 so far as it fastens the liability
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on the petitioners to pay 25% back wages to the respondent no.2. It is
submitted that when the review application is still pending, the petitioners
cannot be permitted to pursue this writ petition with a prayer for issuance
of a direction against the Education Officer to pay the back wages to the
respondent no.2. It is, however, fairly admitted that the petitioner Society
has not appointed any other employee in the vacancy that was caused due
to the termination of the services of the respondent no.2.
On hearing the learned Counsel for the parties and on a
perusal of the judgment of the Hon'ble Supreme Court in the case of
Educational Society, Tumsar and others (supra) as also the judgment of
this Court dated 9/9/2014 in Writ Petition No. 6278/2005, it appears that
a direction against the respondent Education Officer to release the 25%
back wages in favour of the respondent no.2 would be necessary. It is
held by the Hon'ble Supreme Court in the judgment in the case of
Educational Society, Tumsar and others (supra) that as per the normal
principle, whenever a terminated employee of an aided School challenges
the termination and the termination is held to be illegal by a competent
judicial forum and an order is passed for payment of back wages, the
Government is supposed to bear the said burden. The Hon'ble Supreme
Court has held that the said rule would apply as back wages or any other
payments are in the nature of salary for the intervening period, which the
employee would have earned, had he remained in service. It is
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further added that the Education Authorities would be liable to bear the
financial burden provided the School is a grant-in-aid School. In the
instant case, it is not in dispute that the School in which the respondent
no.2 was appointed is a grant-in-aid School and the services of the
respondent no.2 were duly approved by the Education Authorities. It is
also not disputed that the petitioners have not appointed any other
employee in the post that fell vacant due to the termination of the services
of the respondent no.2. In respect of a grant-in-aid School, normally it
would be necessary for the Government to bear the burden of payment of
salary to its employees. Had the respondent no.2 continued to work in the
School run by the petitioner Society, the respondent no.2 would have
received the salary from the State Exchequer. In the judgment dated
9/9/2014 in Writ Petition No.6278/2005, there is no direction that the
arrears of salary that are liable to be paid to the respondent no.2 should
be paid by the Management and the Management alone and it would not
be permissible for the Management to secure the reimbursement of the
same from the State Government. This is not the case where the State
Government is required to pay the salary to two employees for one post.
Admittedly, the petitioner Society did not appoint any other employee in
the vacancy caused due to the termination of the services of the
respondent no.2. Merely because the review application is pending, the
petitioners cannot be denied the relief. If the review application was
pending, the Education Officer ought not have decided the representation
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of the petitioners, but the Education Officer proceeded to decide the same
against the petitioners by the impugned order dated 2/2/2015. In the
circumstances of the case, the judgment of the Hon'ble Supreme Court in
the case of Educational Society, Tumsar and others (supra) would be
applicable. Also, the case of the petitioners is supported by the judgment
dated 24/8/2016, passed by this Court in Writ Petition No.6274/2015.
Hence, for the reasons aforesaid, the writ petition is allowed.
The impugned order dated 2/2/2015 is quashed and set aside. We hereby
direct the respondent Education Officer to release the amount that is
payable to the respondent no.2 in terms of the judgment dated 9/9/2014
in Writ Petition No.6278/2005 within four months.
Rule is made absolute in the aforesaid terms with no order as
to costs.
JUDGE JUDGE
khj
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CERTIFICATE
I certify that this judgment uploaded is a true and correct
copy of the original signed judgment.
Uploaded by : Uploaded on :
Kamal H. Jeswani 29/9/2016
Private Secretary
