Ku. Mamta Roopchand Patle vs Gyan Prasarak Shikshak Sansthan ...
2017 Latest Caselaw 9484 Bom

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

                               Writ Petition No. 3338/2015

 1] Ku. Mamta Roopchand Patle,
     Aged about 44 years, Occ. Nil
     R/o Station Road, Tirora, 
     Tal. Tirora, Dist. Gondia                            ..... PETITIONER


                                 ...V E R S U S...

 1] Gyan Prasarak Shikshak Sansthan
     Through its Secretary, 
     Anup Govindrao Wasnik, 
     G-2, Asmita Apartment, 
     Ambedkar Road, Khar, 
     Mumbai West-52, 

 2] Head Master, 
      Indira Krishi High School, Thanegaon, 
      Post Thanegaon, Tal. Tirora, 
      Dist. Gondia

 3] Educating Officer (Secondary)
      Zilla Parishad, Gondia, 
      Dist. Gondia                                        ... RESPONDENTS

 =====================================
                    Shri M.V. Mohokar, Advocate for the petitioner
               Shri A.M. Dixit, Advocate for the respondent nos. 1 and 2
                     Miss T.H. Khan, AGP for the respondent no. 3
 =====================================

                                              CORAM:- Z.A. HAQ,J.

                                              DATED :- 11    December, 2017
                                                          th
                                                                            


 ORAL JUDGMENT :-


                Heard. 

                Rule. Rule made returnable forthwith. 





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 2]             The   petitioner-employee   was   appointed   as   Physical 

Education Teacher in the school administered by the respondent

no. 1-Society, by the appointment order dated 23/06/1996

(placed on record as Annexure-II at page 32 of the paperbook).

Clause-II of this appointment order states that the appointment of

the petitioner was temporary from 26/06/1996 till the end of that

academic session. It is undisputed that this appointment of the

petitioner was made without issuing any advertisement and

without following the procedure prescribed by Section 5 of the

Maharashtra Employees of Private Schools (Conditions of Service)

Regulation Act, 1977 (hereinafter referred as "the Act of 1977"),

rules framed under it and the Government Resolutions and

Circulars. It is undisputed that without issuing any written order,

the petitioner was continued in service in the academic sessions

1997-1998 and 1998-1999, the Education Officer granted

approval to the appointment of six employees working in the

school administered by the respondent no. 1-Society by

communication dated 31/03/1998 and this communication shows

that the appointment of the petitioner as Physical Education

Teacher was approved from 23/06/1998 for two years.

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 3]             The petitioner filed appeal before the School Tribunal 

under Section 9 of the Act of 1977 making grievance that the

management had illegally obtained her resignation letter and on

that basis, removed her from service w.e.f. 15/07/1999 and

03/08/1999. The petitioner prayed that the termination orders be

quashed and the management be directed to reinstate the

petitioner with consequential benefits.

The management and the School opposed the claim of

the petitioner.

The School Tribunal considered the appeal filed by the

petitioner on merits and by the impugned order, dismissed it

holding that the petitioner has failed to show that her

appointment was made after following the procedure as per

Section 5 of the Act of 1977.

4] The advocate for the petitioner has submitted that the

Tribunal has committed an error in dismissing the appeal filed by

the petitioner on the ground that the petitioner has not pointed

out that her appointment was made as per Section 5 of the Act of

1977. It is submitted that the legality and the validity of the

appointment of the petitioner was not in issue before the Tribunal

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and the only issue which the Tribunal was required to advert to

was whether the removal of the petitioner from service on the

basis of alleged resignation letters was proper. Reliance is placed

on the communication dated 31/03/1998 by which the Education

Officer granted approval to the appointment of the petitioner from

23/06/1998 for two years and it is argued that even the Education

Officer had not raised the issue that the appointment of the

petitioner was illegal and without following the procedure as laid

down by Section 5 of the Act of 1977.

5] After examining the matter and considering the

submissions made by the learned advocates appearing for the

respective parties, I find that the conclusions of the Tribunal that

the petitioner is not entitled for relief of reinstatement and

consequential benefits cannot be faulted with. The appointment

order dated 23/06/1996 shows that her appointment was

temporary from 26/06/1996 till the end of the academic session.

It is undisputed that the appointment of the petitioner was made

without following the procedure laid down under Section 5 of the

Act of 1977, rules framed under it and the Government

Resolutions and Circulars. It is admitted that subsequently any

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appointment order is not given to the petitioner and she was

continued in the academic sessions 1997-1998 and 1998-1999 as

per the desire of the management. The Education Officer has not

pointed out, how and on what basis approval was granted to the

appointment of the petitioner from 23/06/1998 for two years. The

learned advocate for the petitioner has submitted that in 1998

grants from State exchequer were sanctioned to the School and

therefore the Headmaster of the School had sent proposal to the

Education Officer in 1998 seeking approval to the appointment of

the employees working in the school. Even if the grants were

sanctioned to the school from the academic session 1998-1999,

the Education Officer could not have granted approval to the

appointment of the petitioner without verifying that her

appointment was made by following the prescribed procedure. In

these facts, the communication dated 31/03/1998 granting

approval to the appointment of the petitioner for two years does

not confer any right in favour of the petitioner and she cannot

claim that she had acquired the status of confirmed employee and

is entitled for reinstatement with consequential benefits.

 6]             Though I concur with the conclusions of the Tribunal 





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that the petitioner is not entitled for reinstatement with

consequential benefits, I find that the manner in which the

petitioner is removed from service was not proper and the

management has failed to substantiate its claim that the petitioner

had submitted the resignation letters. The management has also

failed to show why the petitioner was continued after the

academic session 1996-1997, though her appointment was till the

end of 1996-1997 session. In these facts, I find that this is a fit

case to exercise jurisdiction under Section 11 (2) (e) of the Act of

1977. In my view, the respondent no. 1-management should pay

compensation to the petitioner as per Section 11 (2) (e) of the Act

of 1977. Similarly, as the respondent no. 3-Education Officer has

failed to assist the Tribunal and this Court by filing reply and

explaining the circumstances in which approval was granted to the

appointment of the petitioner by the communication dated

31/03/1998, the Education Officer is liable to pay costs.

Hence, the following order is passed:-

O R D E R

1] In lieu of reinstatement and consequential benefits, the

respondent no. 1-Management shall pay Rs. 1,00,000/- to the

petitioner by demand draft till 15/03/2018. If the respondent no.

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1-Management fails to pay amount of Rs. 1,00,000/- till

15/03/2018, it will be liable to pay the interest at the rate of 9%

per annum on the amount of Rs. 1,00,000/-, the interest being

chargeable from 01/11/2014 i.e. after the decision of the appeal

by the Tribunal till the amount is paid to the petitioner.

2] The respondent no. 3-Education Officer shall pay an

amount of Rs. 20,000/- to the petitioner towards costs. This

amount of costs shall be paid till 15/03/2018.

The copy of this judgment be sent to the Deputy

Director of Education, Nagpur Division, Nagpur and if he feels it

necessary, he may cause an inquiry against the concerned

Education Officer who had issued the communication dated

31/03/1998 and recover the amount from the concerned

Education Officer if he is found guilty.

The order passed by the School Tribunal is modified in

the above terms.

The writ petition is disposed accordingly.

JUDGE

A n s a r i