Bombay High Court
Ishwar Bhauraoji Dorle vs State Of Maharashtra Through ... on 7 April, 2017
Bench: V.A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.2635/2013
WITH
WRIT PETITION NO.2581/2013
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WRIT PETITION NO.2635/2013
PETITIONER: Ishwar Bhauraoji Dorle,
Aged about 39 years, Occu. : Service,
R/o H.B. Adarsh Vidyalaya, Pulgaon,
District : Wardha.
...VERSUS...
RESPONDENTS : 1. State of Maharashtra, through
its Secretary, Department of
School Education, Mnatralaya, Mumbai - 32.
2. The Deputy Director of Education,
Nagpur Division, Nagpur.
3. The Education Officer
(Secondary),
Zilla Parishad, Wardha.
4. Kashi Shikshan Sanstha,
Kelkarwadi, Wardha, through its
Secretary.
5. The Head Master, Sanjay Gandhi
High School, Wardha, District : Wardha.
6. Adarsha Shikshan Prasarak
Sanstha, Pulgaon, District :
Wardha, through its Secretary.
(Petition is dismissed in default against
R-6, vide Reg. (J) order dt. 19.12.14.
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7. The Head Master, Hariram Bhut,
Adarsha Vidyalaya, Pulgaon, Tah. Deoli,
District : Wardha.
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Ms Dashaputre, Advocate for petitioner
Shri S.M. Ukey, Addl. G.P. for respondent nos.1 to 3
Shri P.A. Jibhkate, Advocate for respondent nos.4 and 5
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WITH
WRIT PETITION NO.2581/2013
PETITIONER: Deepak Manoharrao Chaudhari,
Aged about 45 years, Occ : Service,
R/o Madhyamik Vidyalaya, Chincholi,
Tah. Karanja, District : Wardha.
...VERSUS...
RESPONDENTS : 1. State of Maharashtra, through
its Secretary, Department of
School Education, Mnatralaya, Mumbai - 32.
2. The Deputy Director of Education,
Nagpur Division, Nagpur.
3. The Education Officer
(Secondary),
Zilla Parishad, Wardha.
4. Kashi Shikshan Sanstha,
Kelkarwadi, Wardha, through its
Secretary.
5. The Head Master, Sanjay Gandhi
High School, Wardha, District : Wardha.
6. Vidarbha Youth Welfare Society,
Amraoti, District : Amraoti, Through its
Secretary.
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7. The Head Master, Madhyamik
Vidyalaya, Chincholi, Tah.
Karanja, District : Wardha.
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Ms Dashaputre, Advocate for petitioner
Shri S.M. Ukey, Addl. G.P. for respondent nos.1 to 3
Shri P.A. Jibhkate, Advocate for respondent nos.4 and 5
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CORAM : SMT. VASANTI A NAIK, AND
MRS. SWAPNA JOSHI, JJ.
DATE : 07.04.2017
ORAL JUDGMENT (PER : SMT. VASANTI A. NAIK, J.)
Since the issue involved in these petitions is identical and
similar prayers are made therein, they are heard together and are decided
by this common judgment.
2. By these writ petitions, the petitioners have sought a
direction against the Education Officer and the Management to pay the
salary w.e.f. 1.6.2008 till 31.1.2011 to the petitioner in Writ Petition
No.2635/2013 and from 1.9.2008 till 13.2.2011 to the petitioner in Writ
Petition No.2581/2013.
3. The petitioners were appointed on the non-teaching posts in
Sanjay Gandhi High School, Wardha and they attained permanency in
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their services. The petitioners were declared surplus but it is the case of
the petitioners that they continued the work in the said school. Sanjay
Gandhi High School was derecognised on 26.08.2008. After the
derecognition of the school, the petitioners had sought their absorption in
some other schools. A petition was filed by the petitioners seeking a
direction against the Education Officer to absorb them in some other
schools. The petitioners in Writ Petition No.2635/2013 and Writ Petition
No.2581/2013 were absorbed in the other schools on 1.2.2011 and
14.2.2011 respectively. Since the petitioners were not paid the salary for
the period during which they were out of service, the petitioners have
sought a direction against the Education Officer and the Management to
pay the unpaid salary to the petitioners from the date of the derecognition
of the school, till they were absorbed in the other schools.
4. The learned Counsel for the petitioners submitted that in
view of the provisions of Rule 26 of the Maharashtra Employees of Private
Schools (Conditions of Service) Rules, 1981 a duty is enjoined upon the
Management and the Education Authorities to pay the salary to the
petitioners from the date of the derecognition of the schools till they are
absorbed in the other schools. It is submitted that the petitioners went to
the school even after its derecognition for some time and hence, they are
entitled to the salary for the said period. It is submitted that it is observed
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by this Court in the earlier writ petition filed by the petitioners that it is
admitted, that in view of Rule 26 of the Rules, the petitioners need to be
absorbed in some other schools. It is stated that a direction be issued
against the respondents to pay the salary to the petitioners from the date
of the derecognition of the school, till they were absorbed in the other
schools.
5. On the other hand, it is submitted on behalf of the
Education Officer by the learned Additional Government Pleader and the
learned Counsel for the respondent nos.4 and 5 that it would not be the
responsibility of the Education Officer to pay the salary to the petitioners
for the period during which they were out of service, in view of the
derecognition of the school. It is submitted that Rule 26 of the Rules
would not apply to the facts of the case and the case would be governed
by the provisions of Rule 25 A of the Rules. It is stated that when there is
a derecognition of the school, the names of the employees in the school
are entitled to be brought on the waiting list maintained by the Education
Officer and their names are liable to be recommended to the
Managements of the newly opened schools. The learned counsel for the
respondent Nos.4 and 5 also sought for the dismissal of the writ petition.
6. On hearing the learned counsel for the parties, it appears
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that the relief sought by the petitioners cannot be granted. The case of the
petitioners would not be governed by the provisions of rule 26 of the
Maharashtra Employees of Private School (Conditions of Service) Rules
and would be governed by rule 25A of the same. The school in which the
petitioners were working was derecognised on 26.08.2008. The names of
the employees working in the schools were entitled to be placed in the
waiting list maintained by the Education Officer and their names were
liable to be recommended to the newly established schools or the schools
in which additional sections are provided. If there is an absorption as per
rule 25A of the Rules, the employees are not entitled to any salary from
the Education Officer. In case of the employees governed by rule 26 of
the Rules, where retrenchment on account of reduction of establishment
due to the reasons mentioned in rule 26 occurs, salary is liable to be paid.
In the instant case, there was no reduction of the establishment in the
school in which the petitioners were working for the reasons mentioned in
rule 26 but the school in which they were working was derecognised.
Since the school was derecognised, the petitioners were not entitled to the
salary for the period during which they were out of service. The
petitioners had filed a petition in the year 2010 seeking their absorption
in some other schools but in the said petition, the petitioners had not
sought any salary for the period during which they were out of service. If
that is so, the petitioners would not be entitled to claim the relief in this
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writ petition in view of the principles akin to the principles of constructive
res judicata. Even assuming that the petitioners had prayed for the relief
in the earlier petition, it appears from the order passed in the earlier
petition that the relief was not granted. By this petition, the petitioners
would not be entitled to claim the relief as the school in which the
petitioners were working was derecognised and they were absorbed in the
other schools for the first time on 01.02.2011 and 14.02.2011. The
petitioners have received the salary for the period during which they have
worked after their absorption.
7. Since the relief sought by the petitioners cannot be granted in the
circumstances of the case, we dismiss the writ petitions with no order as
to costs. Rule stands discharged.
JUDGE JUDGE
WADKAR & KHUNTE
