Suresh Baliram Hukare vs State Of Mah. Thr Sec.Deptt.Of ...
2017 Latest Caselaw 3087 Bom

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

                   Writ Petition No.4054 of 2001

  Suresh s/o Baliram Hukare,
  Aged 36 years,
  Occupation - Service,
  Resident of near ST Depot,
  Sakoli, Tq. Sakoli,
  District Bhandara.                               ... Petitioner

       Versus

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

  *2. Smt. Anandbai Education
      Society, Isapur, Post Gurdha,
      Tq. Lakhandur,
      Dist. Bhandara, through its
      Vice-President Devman Kapgate,
      Aged 70 years,
      Occupation - Retired,
      Resident of behind Forest Office,
      Sakoli, District Bhandara.

  3. The Principal, Kalabai Kanya Junior
     College, Sakoli, District Bhandara.

  4. The Deputy Director of Education,
     Nagpur Division, Nagpur.

  *5. Chandrabhan Shivaji Isapure,
      Aged 70 years,
      Occupation - Retired,




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        Secretary, Smt. Anandibai
        Education Society,
        Isapur, Post Gurdha,
        Tahsil Lakhandur,
        District Bhandara.

        (* Amended as per Court's order
        dated 4-4-2016).                                ... Respondents


  Shri B.M. Kharkate, Advocate for Petitioner.
  Ms Geeta Tiwari, Assistant Government Pleader for Respondent 
  Nos.1 & 4.
  Shri Rohit Joshi, Advocate for Respondent No.5.

                Coram : R.K. Deshpande & Mrs. Swapna Joshi, JJ.

th Dated : 13 June, 2017

Oral Judgment (Per R.K. Deshpande, J.) :

1. The approval to the appointment of the petitioner as a

Lecturer in Junior College was rejected by the respondent No.4-

Deputy Director of Education on 22-8-2000 on the ground that

the Management has failed to fill in the backlog of reserved

category candidates. The petitioner has challenged the said

communication in this petition and seeks a direction to the

Deputy Director of Education to grant approval to his

appointment and consequently to release the salary as per the

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scale of pay on which he was appointed. Shri Kharkhate, the

learned counsel appearing for the petitioner, submits that the

petitioner has left the job of a Lecturer in Junior College run by

the respondent Nos.2 and 3 with effect from 25-10-2004. The

claim in this petition is for payment of arrears of salary from

1-7-1994 till the filing of the petition on 9-11-2001.

2. It is the stand taken by the respondent No.4-Deputy

Director of Education that the petitioner was working in the

College run by the respondent Nos.2 and 3 since the year

1991-92. Up to the academic session 1992-93, the appointment

of the petitioner as a Lecturer in Junior College on clock hour

basis was also approved. The College being run on grant-in-aid

basis, the petitioner was also paid the salary from the State

exchequer. It is also the stand taken by the Deputy Director of

Education that during the academic session 1993-94, the

Management made efforts to fill in the backlog, but the

candidates from the backward class category were not available.

The petitioner was, therefore, appointed for the academic session

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1993-94 purely on temporary basis and his appointment was

approved for that session only. It is also the stand taken that

during 1994-95 same position continued and, therefore, the

approval to the appointment of the petitioner was rejected.

Consequently, the salary grant for payment of salary to the

petitioner was not released from the State exchequer.

3. There is no dispute that the petitioner was appointed as

a Lecturer in Junior College with effect from 1-7-1994 on

temporary basis and he was continued on year-to-year basis till

he left the job on 25-10-2004. It is also not in dispute that the

petitioner has performed the job of teaching but he was not paid

the salary for this entire period from 1-7-1994 to 25-10-2004. If

it is the case of the Deputy Director of Education that the

Management made efforts to fill in the backlog by issuing an

advertisement in the newspaper and inviting the applications, but

such candidates were not available, then in terms of Rule 9(9)(a)

of the Maharashtra Employees of Private Schools (Conditions of

Service) Rules, 1981, the post can be filled in temporarily or on

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year-to-year basis by a candidate not belonging to such backward

class till the backlog is filled in. The Deputy Director of

Education having accepted in the impugned communication that

the workload was available for appointment to the post, then he

should have considered the question of grant of approval on

year-to-year basis only, so that the petitioner could have received

the salary for performing his job. This has not been done and,

therefore, the Deputy Director of Education will have to be

directed to grant approval to the appointment of the petitioner

on year-to-year basis with effect from 1-7-1994 till filing of this

petition on 9-11-2001.

4. In the decision of the Apex Court in Andi Mukta Sadguru

Shree Mnuktajee Vandas Swami Suvarna Jayani Mahotsav Smarak

Trust and others v. V.R. Rudani and others, reported in

(1989) 2 SCC 691, it is held that the writ petition filed by the

retrenched teachers of the private aided College (a Public Trust),

affiliated to University, seeking writ of mandamus for compelling

the College Management to pay them terminal benefits and

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arrears of salary due, is maintainable. In the present case, the

direction is required to be issued to the Deputy Director of

Education for granting approval and consequently for payment of

arrears of salary. We do not find any impediment in issuing such

mandamus. However, the question is whether the petitioner

would be entitled to claim the arrears of salary for a period more

than past three years from the date of filing of this petition on

9-11-2001. In our view, such a claim being time-barred, cannot

be granted. The petitioner would, therefore, be entitled to

arrears of salary for a period of three years immediately

preceding the date of 9-11-2001, when this petition was filed.

Rest of the claim is rejected.

5. In the result, the petition is partly allowed. The order

dated 22-8-2001 passed by the respondent No.4-Deputy Director

of Education, Nagpur, refusing to grant approval to the

appointment of the petitioner, is hereby quashed and set aside.

The direction is given to grant such approval with effect from

1-7-1994, but the arrears of salary payable to the petitioner shall

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only be for the period immediately preceding three years from

the date of 9-11-2001. This entire exercise be done within a

period of six months, including forwarding salary bills by the

Management to the Deputy Director of Education.

6. Rule is made absolute in above terms. No order as to

costs.

                            JUDGE                        JUDGE

   Lanjewar