Jyoti Krushnarao Choudhari vs Chairman Co Ordination Committee ...
2017 Latest Caselaw 5957 Bom

                                                    Writ Petition No.5968/2004
                                        1


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                               BENCH AT AURANGABAD


                        WRIT PETITION NO.5968 OF 2004



 Jyoti d/o Krushnarao Choudhari
 Age 43 years, Occ. Service,
 R/o C/o Shri N.P. Bhole, Flat No.4,
 Swamini Apartment, Sharda Nagar,
 Bhusawal, Taluka Bhusawal,
 District Jalgaon                             ...      PETITIONER

          VERSUS

 1.       The Chairman,
          Co-Ordination Committee/
          School Committee, Secondary &
          Higher Secondary Education,
          Municipal Council, Bhusawal,
          District Jalgaon.

 2.       The Head Master,
          Dayaram Shivdas Secondary &
          Higher Secondary Vidhayalaya,
          Bhusawal, Taluka Bhusawal,
          District Jalgaon.

 3.       The Municipal Council,
          Bhusawal, District Jalgaon,
          through its Chief Officer,

 4.       The Education Officer (Secondary)
          Zilla Parishad, Jalgaon

 5.       The Deputy Director of Education,
          Nashik Division, Nashik           ...        RESPONDENTS

                                 .....
 Shri Swapnil S. Patil, Advocate for petitioner
 Shri G.V. Wani, Advocate for respondent No.1
 Respondent No.2 served
 Shri S.B. Joshi, A.G.P. for respondents No.4 & 5
 Shri Sandip Gorde Patil, Advocate for respondents No.3
                                 .....



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                                                            Writ Petition No.5968/2004
                                            2



                                CORAM:           R.D. DHANUKA AND
                                                 SUNIL K. KOTWAL, JJ.

DATED: 16th August, 2017.

ORAL JUDGMENT (PER R.D. DHANUKA, J.) :

1. By this petition filed under Article 226 of the

Constitution of India, the petitioner has impugned the letter

dated 5/7/2004, addressed by the respondent No.1 informing the

petitioner that her appointment on the basis of clock hour basis is

terminated in view of the approval not granted by the Education

Department. Some of the relevant facts for the purpose of

deciding this petition are as under :

2. The petitioner acquired qualification of M.Com. and

B.Ed. in the year 1983 and 1988 respectively. On 2/8/1988, the

petitioner was appointed as an Assistant Teacher in the

respondent No.2 school, which is run by the respondent No.3

Council on temporary basis. It is the case of the petitioner that

her services were continued as Assistant Teacher by subsequent

appointment orders dated 28/2/1989, 17/7/1989, 13/7/1990,

16/2/1991 and 1/8/1991. It is the case of the petitioner that, on

6/8/1993, the petitioner was appointed as Part Time Teacher to

teach 12th Standard students in the Subject Economics. The

Writ Petition No.5968/2004

appointment of the petitioner was issued on the basis of clock

hour basis in the subject Economics for Higher Secondary Class

on 13/6/1995 by the respondent No.1 and 2.

3. The Municipal Council, by its resolution dated

31/1/1997, resolved that, as the petitioner had worked as

Assistant Teacher since the year 1988 onwards till 1992, she

should be appointed on permanent basis in the pay scale w.e.f.

1/2/1997. It is the case of the petitioner that the respondents

No.1 and 2 accordingly issued permanent appointment order to

the petitioner in the respondent No.2 school in the pay scale of

Rs.2000-2500 w.e.f. 1/2/1997.

4. It is the case of the petitioner that, the respondent

No.3 Council passed a resolution on 31/3/1998 to the effect that

payment of salary of the petitioner should have been paid in the

regular pay scale from the funds of Municipal Council, Bhusawal.

5. It is the case of the petitioner that the respondent

No.3 School forwarded various proposals from time to time to the

respondent No.5 Deputy Director of Education for approval of the

petitioner's appointment. The payment of salary of the petitioner

has been released by the authorities from 1988 till 1992 as

Assistant Teacher. It is the case of the petitioner that, however,

Writ Petition No.5968/2004

since 1993, the petitioner has not been paid any salary. On

5/7/2004, the respondent No.1 issued a letter of termination,

thereby terminating the services of the petitioner on the ground

that the Education Department has not approved her services.

The petitioner accordingly filed this petition for a writ of

certiorari, interalia praying for quashing and setting aside of the

order passed by respondent No.1, dated 5/7/2004, thereby

terminating the services of the petitioner.

6. Learned counsel for the petitioner invited our

attention to various correspondence annexed to the petition and

would submit that, though the appointment of the petitioner was

made on temporary basis, i.e. clock hour basis during the period

between 1988 and 1997, on 31/1/1997, the services of the

petitioner were regularised. The Municipal Council has passed

resolution that till the approval of the petitioner was made, the

salary of the petitioner would be made from the Municipal funds.

7. Learned counsel for the respondent No.3, on the

other hand, invited our attention to the letter dated 3/2/1990,

addressed by the petitioner to the respondent No.1, informing

that, since some of the teachers of the school had retired, she

was teaching to the students of 11th Standard and expressed her

willingness for her free services to the school for the remaining

Writ Petition No.5968/2004

period of the academic year. She also recorded that, even in the

past, i.e. for the months of March 1989 and April 1989, she had

offered her services free. By the said letter, the petitioner

requested the respondent No.1 to continue her services for the

academic year 1990-91 sympathetically. He submits that, the

petitioner thus cannot claim any permanency in service and

cannot challenge the order of termination issued by the

respondent No.1.

8. Learned counsel submits that, admittedly the

petitioner was appointed on temporary basis as Assistant Teacher

to teach 11th and 12th Standard students in Arts and Commerce

faculty. The petitioner was teaching two subjects namely

Secretarial Practice and Organization of Commerce and

Economics subject in Arts faculty. The Deputy Director of

Education had sanctioned the total workload available for those

subjects at 10 periods on clock hour basis. The petitioner had

taken Business Environment and Entranceship and Indian

Economy as subjects in B.Com. He submits that, thus, the

petitioner was not qualified to teach the subjects taught by the

petitioner on the ground that those were not the subjects which

she had studied up to her graduation level. It is submitted that,

the Deputy Director of Education, vide his letter dated

13/12/1995, has thus rightly refused to grant approval to

Writ Petition No.5968/2004

petitioner to teach Economics subject as the petitioner is not

having requisite qualification. He submits that, vide letter dated

11/9/1998 and 7/11/1998, the authority had rightly refused to

grant approval to the services of the petitioner on similar

grounds. Vide letter dated 3/4/1999, the respondent No.5, the

Deputy Director of Education had informed the respondent No.2

that the approval was not granted in favour of the petitioner on

the ground that she did not possess the requisite qualification to

teach Economics as she was M.Com. B.Ed. Graduate.

9. It is submitted by the learned counsel that, by letter

dated 18/8/1999, the Divisional Deputy Director of Education had

granted approval to appoint the petitioner on clock hour basis

since the workload available to the petitioner in the said subjects

i.e. Commerce faculty was only 10 periods. Similarly, for the

academic years 2000-2001, 2001-2002 and 2002-2003 also, the

approval was granted on clock hour basis to teach Commerce

faculty.

10. Learned counsel for the Council relies on Rule 17.1

and also Annexure 63 of the Secondary School Code and would

submit that, the management was directed to ensure that the

subjects which were taken for basic degree obtained by the

petitioner were keeping in view the subjects taught in the classes

Writ Petition No.5968/2004

in secondary school for which the teacher is appointed. He

submits that, since the petitioner was M.Com. B.Ed., she was not

qualified to teach Economics subject in the secondary school.

11. Learned counsel for the respondent No.1 submits

that, since there was no workload available in the school, the

management had appointed the petitioner purely on clock hour

basis for temporary period subject to the approval being granted

by the authority. He submits that, since the Council has refused

to grant approval to the appointment of the petitioner, his client

has rightly terminated the services of the petitioner.

12. It is not in dispute that the petitioner was appointed

on clock hour basis by the respondent No.1. The petitioner has

been already paid the salary for the work done by the petitioner

on the said post to which the petitioner was appointed on clock

hour basis. Perusal of the record indicates that the respondent

No.3 Council had, from time to time, conveyed the decision to

the management rejecting approval of the services of the

petitioner on the ground that petitioner was not having requisite

qualification to teach the subjects being taught by her. The

learned counsel for the petitioner does not dispute that petitioner

was M.Com. B.Ed. In our view, since the petitioner was not

possessing the qualification of M.Com. B.Ed., she was not

Writ Petition No.5968/2004

qualified to be appointed as Assistant Teacher to teach

Economics subject in Arts faculty.

13. The appointment of the petitioner made on clock hour

basis appears to have been made since there was no other

teacher available in the school for the purpose of teaching the

subject of Economics in secondary school on clock hour basis.

The appointment of the petitioner made on clock hour basis, in

these circumstances, would not vest any right in the petitioner to

continue her appointment on permanent basis. The perusal of

the initial letter of appointment, annexed to the petition, clearly

indicates that the appointment was made subject to the approval

of the authorities and was made on temporary basis. Since the

Council has refused to grant permission on the ground that

petitioner was not having requisite qualification to teach the

Economics subject to secondary school, the respondent No.1 had

no other alternative than to terminate the services of the

petitioner.

14. A perusal of the prayers in the petition indicates that,

the petitioner has not impugned the orders passed by the Council

from time to time refusing to grant approval to the appointment

of the petitioner on the ground that petitioner was not qualified

and did not possess requisite qualification to be appointed in the

Writ Petition No.5968/2004

subject of Economics in the secondary school. The impugned

letter of termination, dated 3/7/2000, passed by the respondent

No.1 is based on the letter of the Deputy Director of Education,

rejecting approval of the petitioner's post of Assistant Teacher.

In these circumstances, in our opinion, the petitioner has not

made out any case for interference with the order passed by the

respondent No.1. The petition is devoid of merit. We, therefore,

pass the following order :

ORDER

Writ Petition No.5968/2004 is dismissed. Rule is

discharged. There shall be no order as to costs.

          (SUNIL K. KOTWAL)                 (R.D. DHANUKA)
               JUDGE                              JUDGE




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