Sanjay Ganpatrao Irlapalle vs State Of Maha & Ors
2017 Latest Caselaw 4309 Bom

                                                              WP No. 2396/04
                                      1


                  IN THE HIGH COURT AT BOMBAY
              APPELLATE SIDE, BENCH AT AURANGABAD

                        WRIT PETITION NO. 2396 OF 2004

       Sanjay s/o. Ganpatrao Irlapalle,
       Age 36 years, Occu. Asst. Teacher,
       R/o. Gitta, Post Jawalgaon,
       Tq. Ambejogai, Dist. Beed.                  ....Petitioner.

               Versus


1.     State of Maharashtra,
       Education and Employment Department,
       Mantralaya, Mumbai.

2.     Raghuvathrao Munde Education
       Society, Katkarwadi, Tq. Ambajogai,
       Dist. Beed, through its President.

3.     Kathakade Venkat Vittalrao
       at Katkarwadi, Post Ujani,
       Tq. Ambajogai, Dist. Beed,
       Secretary,
       Raghunathrao Munde Education
       Society, Katkarwadi, Tq. Ambajogai,
       Dist. Beed.

4.     Dattatraya Ramrao Munde,
       Secretary
       of Raghuvanthrao Munde Education
       Society, Katkarwadi, Tq. Ambajogai,
       Dist. Beed.

5.     Head Master,
       Raghunathrao Munde Vidyalaya,
       Katkarwadi, Tq. Ambajogai,
       Dist. Beed.

6.     Education Officer (Secondary),
       Zilla Parishad, Beed.

7.     Smt. Morale Nirmala Rambhau,
       Age 40 years, Occu. Asst. Teacher,
       Raghunathrao Mundhe Vidyalaya,
       Katkarwadi, Tq. Ambajogai,




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                                                                      WP No. 2396/04
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          Dist. Beed.                                     ....Respondents.

Mr. R.J. Godbole, Advocate for petitioner.
Mrs. V.N. Patil/Jadhav, AGP for respondent Nos. 1 & 6.
Mr. Satyajit Bora, Advocate for respondent Nos. 2 to 5.


                                   CORAM    :   T.V. NALAWADE AND
                                                SANGITRAO S. PATIL, JJ.

RESERVED ON : July 03, 2017.

DECIDED ON : July 11, 2017.

JUDGMENT : [PER T.V. NALAWADE, J.]

. The petition is filed to challenge the correspondence

made by respondent No. 2/institution and the Headmaster, the

employer of the petitioner with the petitioner by which the decision

of the educational institution is informed that the petitioner is

Assistant Teacher in primary school in the pay scale of Rs.1200-2040

and he is not Assistant Teacher in the secondary school in the pay

scale of Rs.1400-2600. A direction is also sought by the petitioner to

respondents that petitioner should be treated as trained graduate

teacher in secondary school in the pay scale of Rs.1400-2600 with

effect from 1.7.1991 and give him the scale as per the 5th Pay

Commission and fix his pay accordingly. Relief is also claimed for

giving direction to respondents to pay the arrears after fixing pay in

the aforesaid manner. Both the sides are heard.

2) The educational qualification of the petitioner is B.A.,

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B.Ed. It is his case that respondent No. 2/institution was running

secondary school and in the school, he was appointed as Assistant

Teacher with effect from 1.7.1991 in the pay scale of Rs.1400-2600.

It is his case that in the year 1992, he was appointed as incharge

Headmaster of the school and his appointment was approved by the

authority like Education Officer Secondary. It is his case that in the

seniority list prepared by the school for the years up to 1994, his

name was shown in the pay scale of Rs.1400-2600 and his

appointment was shown as on permanent post and as confirmed

teacher.

3) The petitioner was terminated on 4.9.1995. This decision

was challenged by the petitioner by filing appeal bearing No.

308/1996 before the School Tribunal. This appeal was decided in

favour of the petitioner on merits. Direction was given to the

respondent/institution and the school to reinstate the petitioner. Writ

Petition No. 27/2000 was filed by the respondent/school to challenge

the decision of the School Tribunal in this Court. This Court had

refused to grant interim relief. In Writ Petition, compromise

document was filed by the respondent/school and the petitioner that

the respondent/school was reinstating the petitioner in service and it

was making correspondence with the Education Officer Secondary to

see that the petitioner gets the scale and the implementation of the

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5th Pay Commission also. In terms of this compromise, Writ Petition

No. 27/2000 of the respondent/school came to be disposed of.

4) It is the case of petitioner that in view of the decision of

School Tribunal, a direction was given by the Education Officer

Secondary to the respondent/institution to give the pay scale of

Rs.1400-2600 to the petitioner. It is contended that further direction

was given to see that the junior-most teacher (respondent No. 7)

employed by the school is terminated and the post is made available

to the petitioner. Respondent No. 7 is the wife of the Chairman of

this institution and she was appointed subsequent to the

appointment of the petitioner in the school.

5) It is the case of the petitioner that to protect respondent

No. 7, the school management joined hands with respondent No. 7

and appeal was filed by respondent No. 7 against the school

management in the School Tribunal. It is contended that

intentionally, the management did not appear in the matter and the

School Tribunal gave exparte decision in favour of respondent No. 7.

It is contended that respondent No. 7 was then given the post of

Assistant Teacher in the pay scale of Rs.1400-2600 and the

petitioner was deprived of this scale.

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6) It is the case of the petitioner that he was then given the

scale of Rs.1200-2040 and such letters, which are under challenge,

were sent to him when he made many representations. It is the case

of the petitioner that in spite of the representations made by him, no

steps were taken by respondent/management to give him scale of

Rs.1400-2600 and so, he was required to file present writ petition. It

is the case of the petitioner that only to accommodate respondent

No. 7, the management is avoiding to give the pay scale of Rs.1400-

2600 to the petitioner, though he was appointed in secondary school

and he was teaching for 8th, 9th and 10th standards.

7) The respondent/school has denied that petitioner was

appointed in secondary school. It is contended that his appointment

was in primary school in the pay scale of Rs.1200-2040.

8) Respondent No. 7 has not appeared in the present

proceeding in spite of service of notice on her. Respondent No.

1/Government has contended that there is no vacant post in

secondary school for giving appointment to the petitioner in the pay

scale of Rs.1400-2600 with effect from 1.7.1997. It is the case of

Government that as per the order made by the School Tribunal, a

direction was given by the authority, Education Officer on 25.1.2000

to respondent/ school to give the appointment to the petitioner and

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comply the order. It is the case of Government that as the post of

teacher in scale of Rs.1400-2600 is not available for giving

appointment to the petitioner with effect from 1.7.1991, the scale of

Rs.1200-2040 was given to the petitioner and as such approval is

given by Education Officer Secondary.

9) Following points and circumstances were mainly argued

and stressed by the learned counsel for the petitioner :-

(i) Admittedly, the petitioner was appointed as Assistant

Teacher by respondent/institution on 1.7.1991 and his

educational qualification on the date of appointment was

B.A., B.Ed. which is required for giving appointment as

teacher in secondary school.

(ii) In the year 1991, there was no permission to

respondent/institution to start 5th, 6th and 7th standard

classes and so, it cannot be inferred that the appointment

was given in primary section.

(iii) On 10.7.1990 permission was given by the authority

to start 8th standard class, in 1991-92 permission was

given for starting 9th standard class and in 1992-93

permission was given to start 10th standard class to

respondent/institution and that was done as per the natural

growth of the institution and this fact is not disputed by the

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respondent/institution.

(iv) Admittedly, first time in the year 1993 permission

was given to the respondent/institution to conduct the

classes of 5th, 6th and 7th standard, though the

permission was given with effect from June 1992. Thus, in

the year 1991, there was no permission given to start the

classes of primary section viz. 5th, 6th and 7th standards.

(v) Admittedly, the petitioner was appointed as incharge

Headmaster in secondary school in the year 1993 and this

appointment was approved atleast for one year by the

Education Officer Secondary. This could not have happened

if the petitioner was not appointed in secondary school.

(vi) In seniority list, civil list of the staff prepared by the

school right from the year 1992 till the year 1994, the

name of the petitioner was shown as Assistant Teacher in

secondary school in the pay scale of Rs.1400-2600 and his

appointment was shown as against the permanent post.

(vii) The petitioner had filed proceeding in School Tribunal

viz. Appeal No. 308/1996 to challenge his termination

made in the year 1996 against the school management and

Education Officer Secondary. This appeal was decided in

favour of petitioner by School Tribunal. In Writ Petition No.

27/2000 filed by respondent/school and management to

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challenge the decision of School Tribunal, compromise

document was filed by petitioner and management of the

school in which the respondent/school had admitted that

the appointment to petitioner was given on 1.7.1991 and

that was in secondary section. As per the compromise, the

respondent/institution had agreed to send the proposal to

approve the salary to Education Officer Secondary and

there was also agreement to send the proposal to give him

scale as per 5th Pay Commission. This petition came to be

disposed of in terms of compromise on 26.7.2001. Even

prior to that date, the Education Officer Secondary by letter

dated 25.1.2000 had directed the institution to give

appointment to the petitioner, as per the decision given by

the School Tribunal in Appeal No. 308/1996, in the pay

scale of Rs.1400-2600. This circumstance leads to the

inference that after verifying everything such order was

made by the competent authority. The competent authority

had informed the President of the institution to see that the

junior-most teacher of the secondary school is removed to

give the post to which the petitioner is entitled.

Accordingly, the junior-most teacher, respondent No. 7 was

removed from service.

(viii) Appeal filed in School Tribunal by respondent No. 7 to

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challenge her termination by respondent/institution was

intentionally not contested by the school as respondent No.

7 is the wife of Chairman of the institution. The School

Tribunal allowed this appeal exparte. To the proceeding

filed in the School Tribunal, the petitioner was not made

party and this decision of the Tribunal was not challenged

by the respondent/institution as respondent/institution

wanted to give post to respondent No. 7 and not to the

petitioner in the pay scale of Rs.1400-2600.

10) On the other hand, the learned counsel for

respondent/management argued on following points :-

(i) There is no appointment order with the petitioner to

show that he was appointed in the year 1991 in secondary

school on the pay scale claimed.

(ii) For 5th, 6th and 7th standards, permission was

granted by the authority to the institution in the year 1993

and it was to take effect from June 1992. The institution

was running this section of primary school from prior to

1991 and there is record with the institution to show that

students were admitted for these classes from prior to

1991. Thus, the appointment was given to the petitioner

for 5th, 6th and 7th standards as trained teacher in the

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scale of Rs.1200-2040.

(iii) The record and the contention of the petitioner that

he was teaching subjects to even 10th standard class

cannot entitle him to get the pay scale of Rs.1400-2600 as

no appointment order was issued in his favour of that scale

and in secondary school.

(iv) Though the Education Officer Secondary had given

direction to the management to give appointment to the

petitioner in the pay scale of Rs.1400-2600, there was no

such power with the Education Officer and that can be done

only the management of the school.

11) This Court had directed the respondent/management by

order dated 16.6.2017 to produce all the record with regard to the

appointment of the petitioner for 5th, 6th and 7th standards if there

was such appointment made in the year 1991. The respondent/

management was also expected to produce the record of acceptance

of such appointment by the petitioner. The record of appointment of

respondent No. 7 was also directed to be produced by the

management. This record is not produced by the respondent/

management. Sufficient time and opportunity was given to the

respondent/management in that regard. The learned counsel for

respondent/management submitted that though there is some

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record in favour of petitioner as contended by him, that record could

be created due to some dispute between the Secretary of the

management and the Chairman. The learned counsel submitted that

the Headmaster has no power to create seniority list and that power

is vested with the management and so, the record produced by the

petitioner in that regard cannot be relied upon. He also submitted

that probably that record is fabricated.

12) Though arguments of aforesaid nature are advanced by

the learned counsel for management, the fact remains that the

necessary record in support of aforesaid contentions was not

produced by the management. The main circumstance which needs

to be kept in mind is that the School Tribunal has given decision in

favour of the petitioner in the proceeding which was filed against the

management of the school and the Education Officer Secondary. For

compliance of that order, Education Officer Secondary had issued

order against the management. In Writ Petition filed by the

management bearing No. 27/2000, the compromise document was

signed by the Headmaster and also by the Chairman of the

institution and the compromise shows that the management has

accepted that appointment was given to the petitioner on 1.7.1991

in secondary school. The management had agreed to forward the

proposal to the authority like Education Officer Secondary to see that

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the petitioner gets the scale and also the scale as per 5th Pay

Commission. When such settlement was there, it is not open to the

management now to say that the appointment was initially given in

primary section in the year 1991. The circumstance that the primary

section was not in existence in the year 1991 cannot be ignored.

There is no record of correspondence with Education Officer Primary.

The educational qualification required for getting post in primary

section is D.Ed. and not B.Ed. No separate record of teachers, who

were appointed for 5th, 6th and 7th standards in that year is

produced on the record when contrary record is produced by the

petitioner to show that his name was appearing in the list of

teachers prepared for secondary school. The appointment of the

petitioner as incharge Headmaster was approved by the Education

Officer Secondary in the year 1993 and the seniority list for the year

1994 of the secondary school bears the signature of Education

Officer Secondary. This record shows that the appointment of the

petitioner was as against the permanent post in secondary school in

the pay scale of Rs.1400-2600. At that time, respondent No. 7 was

not in picture. Even the previous Headmaster was shown as incharge

Headmaster. It can be said that as there was some grievance against

incharge Headmaster, the petitioner was appointed as incharge

Headmaster in the year 1993 and there was no other reason for the

same.

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13) A typed copy is produced by the management in the

present proceeding to show that when the post of incharge

Headmaster was given to the petitioner, it was informed to him that

he was working in primary section. Another typed copy is produced

to show that the petitioner had accepted such appointment and he

had mentioned that though he was working in primary section, he

was accepting the charge of incharge Headmaster of secondary

school. No original record in this regard is produced before this

Court. This Court has no hesitation to hold that there is clear

possibility of creating false record by the management of such

nature. The respondent/management has avoided to produce all the

relevant record as per the order made by this Court and so, adverse

inference needs to be drawn against the respondent/management. It

can be said that it is not disputed that the petitioner was teaching

for 8th, 9th and 10th standard classes. In ordinary course, when and

if the post had become available in secondary school after the

natural growth of secondary school, the petitioner ought to have

been given that post as he was already there. Even if the record is

accepted as it is, it can be said that the petitioner was standing at

Sr. No. 3 in seniority list of trained graduate teachers. These

circumstances are sufficient to infer that when the wife of Chairman

became available, only to accommodate her, the dispute was created

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with the petitioner, he was terminated and then the appointment

was given to respondent No. 7 in secondary school.

14) The aforesaid circumstances are sufficient to infer that

the respondent/institution was involved in illegal activities. To see

that respondent No. 7 gets the post, even false record is prepared

by respondent/management. It appears that the management had

influence even over the authorities and so, it dared to create such

record and to get approval on the pay scale of Rs.1200-2040 when

there was specific order against the Education Officer Secondary of

the School Tribunal. Such institutions virtually exploit the employees

like the petitioner as the employees like the petitioner are in need of

job and they have no alternative than to work on scale which is

given to them. Even after filing of compromise document in

aforesaid writ petition of the nature mentioned above, the

respondent/management dared to create the record of aforesaid

nature against the petitioner. In view of these circumstances, this

Court holds that the relief claimed by the petitioner needs to be

granted to him. As the petition came to be filed in the year 2004, in

view of the law of limitation, the petitioner will be entitled to get the

pay scale from three years preceding the date of institution of the

present proceeding. The petitioner is entitled to get the pay scale as

per 5th Pay Commission also. For the reasons already given, if the

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additional post is not available and the post which was available is

given to respondent No. 7, that post needs to be vacated for giving

the post to the petitioner. In the result, following order is made.

ORDER

(I) The petition is allowed. The decision of respondent/

management to give petitioner scale of Rs.1200-2040 is

set aside.

(II) The petitioner is to be treated as trained graduate

teacher in secondary school of respondent/management

with effect from 1.7.1991. The pay scale is to be fixed

accordingly. The petitioner is to be treated as teacher

appointed on the post which became available, if any, due

to natural growth of secondary school. If this date is

subsequent to 1.7.1997, the scale is to be fixed as per that

date. Then the pay is to be fixed as per the

recommendations of the 5th Pay Commission. The arrears

of the pay for the period starting from three years

preceding the date of filing of the petition till the date of

decision is to be paid to the petitioner by school

management. Further pay of the petitioner is to be paid by

the Government if for this post, there is grant-in-aid

sanctioned. Arrears of pay shall be paid to the petitioner

within four months from today, failing which the petitioner

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would be entitled to recover it with interest at the rate of

Rs.9% per annum. However, the appointment of the

petitioner is to be treated as mentioned above on the

permanent post from the previous date. The necessary

orders are to be issued by the authority in this regard and

if required necessary orders with regard to the post given

to respondent No. 7 are to be passed by the authorities. It

is to be seen that the petitioner will have the priority over

respondent No. 7 if post had became available. The

respondent/management will be liable to bear the

expenses in respect of the salary paid to respondent No. 7.

Rule is made absolute in aforesaid terms.

[SANGITRAO S. PATIL, J.] [T.V. NALAWADE, J.]

After pronouncement of the judgment, the learned

counsel for respondent/management requests for time to challenge

the decision rendered today by this Court in Writ Petition No.

2396/2004. At his request, time of four weeks from today is hereby

granted.

[SANGITRAO S. PATIL, J.] [T.V. NALAWADE, J.]

ssc/