Subhash Murlidhar Kadam vs The State Of Maharashtra And ...
2017 Latest Caselaw 1581 Bom

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                                                                  W.P.No.2436/13

                                      UNREPORTED

                     IN THE HIGH COURT OF JUDICATURE AT

                                          BOMBAY

                                   BENCH AT AURANGABAD.


                               WRIT PETITION NO.2436 OF 2013


          Subhash S/o Murlidhar Kadam
          Age 45 years, Occ.Nil,
          R/o At Domgaon No.1,
          Tq.Paranda, Dist.Osmanabad.               ... Petitioner.

                           Versus

          1. The State of Maharashtra
          through the Secretary
          of Education, Mantralaya,
          Mumbai-32.

          2. The Chief Executive Officer,
          Zilha Parishad, Osmanabad,
          Dist.Osmanabad.

          3. The Education Officer,
          (Secondary), Z.P., Osmanabad,
          District Osmanabad.

          4. Sadashiv Patil,
          The President,
          Shiv. Shankar Prasarak
          Mandal, Chinchpur (Bk.),
          Tq. Paranda, District
          Osmanabad.

          5. The Secretary,
          Shiv. Shankar Prasarak
          Mandal, Chinchpur (Bk.),
          Tq.Paranda, Dist.
          Osmanabad.

          6. The Head Master,
          Shiv. Shankar Prasarak




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                                                                          W.P.No.2436/13

          Mandal, Chinchpur (Bk.),
          Tq.Paranda, Dist.Osmanabad.                       ... Respondents.

                                   ...
          Mr.G.S.Patil, , advocate for the petitioner.
          Mr.S.B.Pulkundwar, A.G.P. for the State.
          Mr.Vivek Dhage, advocate for Respondent Nos.4
          and 5.
                                   ...

                                     CORAM : S.V.GANGAPURWALA AND
                                             SANGITRAO S. PATIL,JJ.

Date : 10.04.2017.

ORAL JUDGMENT (Per S.V.Gangapurwala,J.)

1. Heard.

2. Rule. Rule returnable forthwith. With

the consent of the parties, the petition is taken

for final hearing.

3. The case of the petitioner is that the

petitioner was appointed as Assistant Teacher on

14.6.1993 and was continuously officiating his

duties. His name also finds place in the

seniority list of the Assistant Teachers

maintained by the institution dated 3.1.1997. It

appears that the petitioner was orally terminated

in 2001. The petitioner filed appeal before the

School Tribunal. Under judgment and order dated

W.P.No.2436/13

9.2.2015, the School Tribunal allowed the appeal

filed by the petitioner and directed

reinstatement with back wages. Subsequently

letter dated 1.4.2005 is issued stating that the

petitioner has joined. It appears that the

Education Officer rejected the approval on the

ground that post is not vacant and thereafter the

petitioner is not allowed to officiate. In the

year 2006, the Education Officer directed the

institution to allow the petitioner to officiate

his duties. As the petitioner was not allowed to

officiate his duties, the petitioner approached

Lokayukta in the year 2007. In 2011, the

Lokayukta observed that it does not possess any

jurisdiction. Thereafter, the present Writ

Petition is filed.

4. Mr.Patil, learned counsel submits that

at all relevant time the petitioner was ready to

officiate his duties but was not allowed to join.

The petitioner bonafide and in good faith

approached the wrong forum. According to the

learned counsel, even the School Tribunal has

observed that the petitioner would be approved

W.P.No.2436/13

and confirmed Assistant Teacher on completion of

his probation period. The probation period came

to an end in 1995.

5. Mr.Dhage, learned counsel for

Respondent Nos.4 and 5 submits that the School,

where the petitioner was initially appointed

stood transferred to the Respondent Nos.4 and 5

in the year 2007. Since 2007, the petitioner

never approached Respondents. The Respondents

absorbed all the teachers who were officiating

their duties on the date of the transfer of the

institution. The name of the petitioner did not

appear in the list. Even the approval to the

appointment of the petitioner is rejected by the

Education Officer on 18.8.2005 on the ground that

vacant post did not exist.

6. Learned A.G.P. for Respondent Nos.1 and

3 submits that in the year 2005 as the post was

not vacant, approval is not granted to the

appointment of the petitioner. Since 2005 the

petitioner is not in service, as such the

petitioner can not claim reinstatement now.

W.P.No.2436/13

7. We have considered the submissions

canvassed by the learned counsel for respective

parties. As would appear from the record that

the petitioner was appointed on 14.6.1993 and had

worked up to the year 2001, on 13.1.2001 he was

orally terminated. The petitioner preferred

appeal before the School Tribunal. Under

judgment and order dated 9.2.2005 the School

Tribunal allowed appeal. The operative part of

the order of the School Tribunal reads as under :

                           "1.      The       appeal        is     allowed         as

                  under.

                               2.   The        impugned            order           of

                  termination              dt.13.1.2001            is       hereby

                  quashed and set aside.

                               3.   The    Appellant          be     reinstated

for within the service with continuity

of service and is entitled to receive

full back wages with consequential

benefits from R/M alone.

4. The R/M is directed to pay

full back wages to appellant until

reinstatement and thereafter as per

W.P.No.2436/13

rules and regulation of M.E.P.S.Act.

                                5.     The      appellant's              service

                  shall         be   deemed     to    be       approved         and

                  confirmed             as       Asstt.Teacher                    on

completion of probation period.

6. The Respondents shall comply

with the aforesaid order within 35 days

on their failure the Respondent No.3

E.O. Shall deduct the dues of the

Appellant from grants of the R/M and he

be paid directly to the Appellant.

7. Inform parties accordingly."

8. It would appear that the School

Tribunal in the order itself has directed that

the appellant's service shall be deemed to be

approved and confirmed as Assistant Teacher on

completion of probation period. The petitioner

had completed his probation period in the year

1995. The name of the petitioner also appeared

in the seniority list maintained by the

institution for the year 1996-97. The Tribunal

had directed reinstatement with full back wages.

The back wages were directed to be paid as

W.P.No.2436/13

against the Management. When the School Tribunal

in the judgment itself had directed that the

petitioner's service shall be deemed to be

approved and confirmed as Assistant Teacher, the

Education Officer thereafter could not have sat

over the judgment of the School Tribunal and

rejected the approval.

9. It appears from the record that the

Management of the School is transferred to

Respondent Nos.5 and 6. It also appears from the

record that the petitioner did not approach the

new Management at any point of time but was

prosecuting his grievance before the Lokayukta.

The Lokayukta observed that it has no

jurisdiction and as such has filed the present

Writ Petition. There appears some laxity on the

part of the petitioner also. It is stated that

at present there is no vacant post available with

the Respondent Nos.4 to 6. To meet the equities

and to do substantial justice, it will be

appropriate to direct the Education Officer to

place the petitioner in the wait list of surplus

candidates to be absorbed in other institution as

W.P.No.2436/13

per his turn. The petitioner would be entitled

for the salary from the date of his absorption.

10. In the result, we pass the following

order :

a) The Respondent No.3 Education Officer

shall keep the petitioner in the wait list of

surplus candidates and shall absorb the

petitioner in any other institution as per his

turn. The petitioner shall be entitled for the

salary only from the date of his absorption.

Though we have directed that the petitioner would

not be entitled for any wages from 2005 till the

date of his absorption, the said period may be

counted for the purpose of continuity in service.

b) Rule accordingly made absolute in above

terms. No costs.

(SANGITRAO S. PATIL,J.) (S.V.GANGAPURWALA,J.)

asp/office/wp2436.13

W.P.No.2436/13

W.P.No.2436/13