Shri Chandrakant Dajiram ... vs Karanjikar Shikshan Prasarak ...
2017 Latest Caselaw 4854 Bom

                                                                                WP 5139.99.doc

Urmila Ingale

                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                          CIVIL APPELLATE JURISDICTION
                                        WRIT PETITION NO. 5139  OF 1999

                 Shri Chandrakant Dajiram Chaugule
                 Age about 42 years,
                 Occupation - Service
                 R/at : 10-B, Shahane Plot,
                 Nandikeshawar Society,
                 Dahitne Road, Shelgi,
                 North Solapur
                 Dist. Solapur                                         .. Petitioner

                         Vs.

                     1. Karanjikar Shikshan Prasarak Mandal,
                 2, East Mangalwar Peth,
                 Solapur - 413 002.
                 (Through its President)

                     2. The Head Master,
                 Karanjkar Vidyalaya,
                 2, East Mangalwar Peth,
                 Solapur, 413 002.

                     3. Shri Sunil Sangappa Chaugule
                 Age - 32 years,
                 Occ : Service,
                 C/o Karanjkar Vidyalaya,
                 2, East Mangalwar Peth,
                 Solapur - 413 002.

                     4. The Administrative Officer,
                 Primary School Board,
                 Solapur Municipal Corpn,
                 Navi Peth, Solapur,

                   5. The Dy. Director of
                 Education, Pune region,

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                                                                          WP 5139.99.doc

 17, Dr.Ambedkar Road,
 Pune - 411 001.

     6. the Presiding Officer,
 Addl. School Tribunal,
 Pune Region at Solapur                                 .. Respondents

 Mr.M.S.Lagu, for the Petitioner.
 Mr.V.K.Bodhare i/b Mr.A.M. Joshi,  for Respondents No. 1 & 2.
 Mr.Yuvaraj Gharal i/b Mr.Vijay Killedar, for Respondent No.4.
 Ms.K.R. Kulkarni, AGP for Respondent No.5.

                                                      CORAM :  A.A.SAYED &
                                                                  M.S.KARNIK, JJ.
                                       
                                            RESERVED ON :  14 th JULY, 2017
                                    PRONOUNCED ON  :   21st JULY, 2017


  JUDGMENT (PER  M.S.KARNIK, J)

:

. The petitioner is qualified as B.A.B.Ed and belongs to

O.B.C. Respondent No.1 - School is a Society which runs and

manages the primary school in Solapur by name 'Karanjkar Vidyalaya'

having classes from I to VII standards. In response to an

advertisement dated 15/05/1993, the petitioner applied for the post

of Assistant Teacher and he came to be appointed as an Assistant

Teacher with effect from 02/06/1993. The resolution was passed by

respondent No.1 - Institution that in view of the previous experience

of the petitioner and his good style of teaching, he has been

appointed to teach the English subject. The petitioner had 6 years

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experience of teaching to his credit prior to joining services of the

respondent No.1 - Institution.

2. The proposal for age relaxation was sent by respondent

No.1 - Institution to the office of Deputy Director of the Education

i.e. respondent No.5 and the same was decided by respondent No.5.

On 08/06/1995, the Administrative Officer - respondent No.4

informed the Head Master of the School in question stating that over

age of the petitioner cannot be condoned.

3. On 05/07/1995, the petitioner and the respondent No.1

- Institution jointly made a request to the respondent No.5 pointing

out the circumstances under which the petitioner came to be

appointed and submitted that he may be granted age relaxation. The

services of the petitioner came to be discontinued by an order of

termination dated 29/09/1997. Against the order of termination, the

petitioner filed an Appeal before the School Tribunal, Pune region at

Solapur being Appeal No. 69 of 1997. The School Tribunal by its

order dated 20/04/1999 dismissed the Appeal filed by the petitioner.

4. The petitioner has thus challenged the order passed by

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the School Tribunal. He has also challenged the letters/orders passed

by respondent No.5 dated 07/04/1995 and 20/06/1997 and letters

of respondent No.4 dated 08/06/1995 and 05/07/1997 refusing age

relaxation.

5. Learned Counsel for the petitioner submits that

respondent No.5 was not justified in rejecting the proposal submitted

by respondent No.1 on his behalf for age relaxation. He contends

that even prior to the joining the services of respondent No.1, the

petitioner has good teaching experience at his credit. The petitioner

was working as an Assistant Teacher and therefore, the Deputy

Director of Eduction has ample power to grant age relaxation in

certain circumstances as provided under Rule 9 (4)(a) of the

Maharashtra Employees of Private Schools (Conditions of Service)

Rules, 1981 (hereinafter referred to as 'Rules' for short). Learned

Counsel for the petitioner contends that no hearing was given by

respondent No.5 before rejecting the proposal of the petitioner for

age relaxation and therefore the order passed is in breach of

principles of natural justice. Learned Counsel submits that there are

several cases in which respondent No.5 had granted age relaxation

and the petitioner is thus discriminated in the matter of grant of age

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relaxation. Learned Counsel submits that though at the time of

regular appointment the petitioner was over age but as he had

teaching experience before he joined the Institution, his experience

should have been taken consideration for granting age relaxation.

Though the petitioner's age was 38 years when he joined the

Institution, but the petitioner was around 30 years 5 months of age

when he started teaching. He was therefore not over age at the time

of initial appointment. Learned Counsel further submits that the

respondent No.5 was further not justified in rejecting the proposal

on the ground that the petitioner is not qualified. In his submission,

the petitioner is B.A.B.Ed and the School is having classes from I to

VII standards and therefore, the petitioner is duly qualified. In the

submission of the learned Counsel the School Tribunal ought to have

interfered with the orders passed by the respondent No.5 and after

granting him age relaxation, the termination ought to have been set

aside.

6. Learned AGP on behalf of the respondent No.5 justified

the orders passed by respondent No.5. Learned AGP invited our

attention to the affidavit-in-reply filed on behalf of respondent No.5.

In the submission of learned AGP the post of Assistant Teacher was

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required to be filled up by promotion but respondent No.1 -

Institution appointed the petitioner directly. Learned AGP further

submits that the Institution appointed the petitioner as a trained

teacher, but as per rules and regulations, the post was required to be

filled up by promotion as per the seniority list. The petitioner was

not possessing the educational qualification of D.Ed at that time,

therefore, his age could not be relaxed. At the time of appointment

the petitioner's age was 38 years and this fact was known to the

Institution. The petitioner was thus clearly age barred. According to

the learned AGP the approval to the petitioner cannot be given as his

age was 38 years at the time of appointment and the previous

experience of the petitioner cannot be considered to approve the

appointment of the petitioner on the post of Assistant Teacher.

Learned AGP submits that respondent No.5 passed the order in

accordance with the provisions of M.E.P.S. Act 1977 and rules framed

thereunder and it is the discretion of the Deputy Director to condone

the age depending on the facts and circumstances of each case.

7. We have considered the submissions made by the learned

Counsel for the parties. Admittedly, on the date when the petitioner

was appointed as an Assistant Teacher with the respondent No.1 on

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15/05/1993, the petitioner was over aged. Rule 9(4)(a) of the Rules

provides that in case of candidate belonging to Backward Classes for

an appointment to be made to any post in a primary school, a

candidate shall not be more than 33 years of age. The upper age

limit may be relaxed in case of persons having previous experience

with the previous permission of the Deputy Director. At the time of

petitioner's appointment, his age was 38 years. The School Tribunal

observed that the Deputy Director of Education has discretion to

relax the upper age limit in case of persons having previous

experience with the permission of the Deputy Director, but in this

matter previous permission of the Deputy Director was not sought

before appointment of the petitioner as Assistant Teacher. The

proposal for age relaxation was submitted to the respondent No.5 to

relax upper age limits of the petitioner.

8. Before the School Tribunal, the petitioner

contended that respondent No.5 has not relaxed upper age limit with

malafide intention. The School Tribunal also took into consideration

the order dated 29/08/1991 produced by the petitioner to show that

the upper age limit of 3 teachers was relaxed by the Deputy Director

of Education. The School Tribunal was of the opinion that the

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School Tribunal cannot direct the Deputy Director of Education to use

discretion in favour of the petitioner to relax upper age limit because

after all it is discretion of respondent No.5 and he can exercise

discretion after considering all the facts and circumstances which

were before him. In these circumstances, the School Tribunal refused

to interfere with the discretion exercised by respondent No.5 - the

Deputy Director of Education. We do not find that view taken by the

School Tribunal is perverse or unreasonable so as to warrant

interference in the exercise of writ jurisdiction.

9. Learned Counsel for the petitioner relied upon the

decision of the Apex Court in the case of Lakhan Lal Tripathi Vs.

Commandant General and anr. (2000) 10 Supreme Court Cases

184 to contend that whether the appellant was over age and whether

he was entitled to any relaxation in age are the questions which

could not have been decided by the respondents by taking one sided

decision without giving any opportunity to the appellant to indicate

that the opinion of the respondent that he was over age was not

correct. The appellant before the Apex Court case was admittedly

not over age and despite that he was terminated for the reasons that

he was found over age at the time of appointment. In our opinion,

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the said decision of the Apex Court is not applicable to the facts of

the present case as admittedly, in the present case, the petitioner was

over age on the date of initial appointment.

10. Learned Counsel for the petitioner also relied upon the

decision of this Court in the case of Rekha Damodar Joshi Vs. State

of Maharashtra 2011 (2) Mah. L.J. 786. In our opinion, the said

decision does not aid the petitioner as in the present case apart from

the petitioner's proposal being rejected on the ground of he being

over age, the same was rejected also on the ground of petitioner was

not duly qualified at the time of his initial appointment.

11. We do not find any merit in the present Petition. The

view taken by the Tribunal cannot be said to be perverse or

unreasonable so as to warrant interference in exercise of writ

jurisdiction. The Petition is therefore dismissed with no order as to

costs.

 (M.S.KARNIK, J.)                                                       (A.A.SAYED, J.)