Bombay High Court
Mahadeo Manbodh Prajapati vs Principal, Shree Satyanarayan ... on 21 June, 2017
Bench: A.A. Sayed
wp 6228.03.doc
Urmila Ingale
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6228 OF 2003
WITH
CIVIL APPLICATION NO. 1639 OF 2016
Mahadeo Manbodh Prajapati
Residing at Krishna Anand Bldg.
2nd floor, Chandan Baug, Bhiwandi,
Dist. Thane .. Petitioner
Vs.
1. Principal
Shree Satyanarayan Madhyamik
Hindi Vidyalaya, College Road,
Dhamankar Naka, Bhiwandi,
Dist. Thane.
2. Secretary
Shree Satyanarayan Shiksha
Seva Sangh,
Dhamankar Naka, Bhiwandi,
Dist. Thane.
3. Education Officer (Secondary)
Zilla Parishad, Thane
4.Dy. Director of Education
Nasik.
5. State of Maharashtra .. Respondents
Mr. M.V. Limaye, for the Petitioner.
None for Respondents No.1 & 2.
Mr.Rohan Sawant, AGP for Respondents No.3 to 5.
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wp 6228.03.doc
CORAM : A.A.SAYED &
M.S.KARNIK, JJ.
RESERVED ON : 14th JUNE, 2017
PRONOUNCED ON : 21st JUNE, 2017
JUDGMENT (PER M.S.KARNIK, J)
:
1. The grievance of the petitioner in the instant Writ
Petition is that though he has been working as an assistant
teacher and is duly qualified, he has not been paid his salary and
allowance. According to him, though his appointment was
approved for some years, it has not been approved by the
Education Officer for the years 1995-96, 1997-98, 2000-01 and
consequently not paid any salary for the said period.
2. As per the affidavit-in-reply filed by the Deputy
Education Officer, Zilla Parishad, Thane, the department has
approved the post of the petitioner on year to year basis in
1996-97, 1998-99, 1999-2000. According to the respondent
No.3 approval for appointment of the petitioner in 2000-01 was
not given as one Shri K.P. Singh was absorbed as surplus teacher
in respondent No.1 - School. There was no vacant post for the
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petitioner in 2000-01. The management did not obtain prior
consent of respondent No.3 before appointment of the petitioner
in the year 2000-01. Respondent No.3 has given approval for
the post of the petitioner since 01/02/2001, since surplus
teacher retired and the petitioner was appointed in place of
retired teacher.
3. The Deputy Education Officer on behalf of
respondent No.3 in the affidavit has stated that in the year
1995-96, the petitioner was working in the primary section and
hence, respondent No.3 cannot be held liable to pay salary to
the petitioner prior to 17/01/1996.
4. Learned Counsel for the petitioner in all fairness
submits that he is not pressing prayer 20(a) (iii). His main
contention is that as admittedly from 1996-97 onwards, the
petitioner is teaching as a full time assistant teacher with the
respondents No.1 & 2 in the secondary section, he should be
paid wages as per the prescribed pay scale for the period from
the year 1996 onwards till 2001. According to the petitioner as
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he is retired, the period during which he is admittedly worked in
the secondary section from 1996 onwards may be counted for
the purposes of calculating his terminal benefit , pension etc.
and continuity of service.
5. The affidavit filed by the Deputy Education Officer
further indicates that as there was clear break in service in 2000-
01, the benefit of previous service cannot be granted to the
petitioner and there is no provision to condone the break period
to obtain financial benefits and increment.
6. The petitioner had approached this Court on an
earlier occasion by filing Writ Petition No. 4399 of 2001. By an
order dated 05/11/2001, this Court was pleased to dispose of
the petitioner by observing thus:
"3. If the petitioner is not being paid his salary allowance
on account of the fact that the Education Officer has not
granted approval, obviously respondents No.1 & 2 are
obliged to pay him the salary. But before that is done, we
direct the Eduction Officer to consider the matter and
after considering all the facts and circumstances, record a
finding as to whether the petitioner is eligible for
appointment as Assistant Teacher. If he finds that the
respondents have not paid him salary/allowance for any
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period for which he is entitled to receive the
salary/allowance, he shall direct the respondents to pay to
the petitioner the salary allowance for the period in
question. However, if he comes to the conclusion that
approval may be granted for the appointment of the
petitioner, then for those years as well, he may pass
appropriate order and consequently, sanction payment of
grant in aid to the school in question for meeting the
obligation of payment of salary allowance to the
petitioner for the years in question.
4. The petitioner is directed to make a representation to
the Education Officer- respondent No.3, within a period of
two weeks from today and the Education Officer will
dispose of the matter within a period of 8 weeks from the
date of receipt of the representation. Advanced copy of
the representation should be served upon respondents No.
1 and 2. All contentions are left open to the parties
concerned.
The Writ Petition is disposed of in above terms."
7. In terms of the order dated 05/11/2001, the
petitioner made a representation on 13/11/2001 to respondent
No.3. From the record, it appears that the representation dated
13/11/2001 was not decided in terms of the order dated
05/11/2001 and therefore, order of this Court is not complied
with.
8. Respondent No.3, however, by communication dated
04/03/2002 addressed to the respondent No.1, insofar as the
petitioner is concerned, granted approval to the appointment of
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the petitioner as an assistant teacher with effect from
01/02/2001. Though there is reference to the order passed by
this Court on 05/11/2001, the issues that were required to be
dealt with by the respondent No.3 as regards payment of salary
and arrears for the academic years 1997-98 & 2000-01 were not
dealt with by the respondent No.3. Respondent No.3 required
the respondent No.1 to furnish some information regarding the
salary paid to the petitioner for the period from 1996-97 to
2000. Learned Counsel for the petitioner, however, submits that
no such information was ever supplied, as a result, the
petitioner's appointment was not granted approval for the years
1997-98 and 2000-01. He was not paid salary for this period
even though it was the primary responsibility of the
respondents No.1 & 2 to have paid the salary.
9. The petitioner has therefore prayed that he is
entitled for arrears of salary for the years 1997-98 and 2000-01
as per prescribed pay scale along with interest. Learned Counsel
for the petitioner has indicated that for the period 1995-96 as he
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had worked in the primary section, he is restricting his claim for
salary for the period 1997-98 and 2000-01.
10. Respondents No.1 & 2 have filed an affidavit
contending that for the period 1997-98 & 2000-01 in respect of
secondary section, approval was not received from the
concerned department. The stand of the respondents No.1 & 2
as far as unpaid salary for the period 1997-98 & 2000-01 is for
issuance of necessary directions to the Education Officer Zilla
Parishad and if their approvals are received, then respondents
No.1 & 2 have no objection to comply with the said directions.
11. Having regard to the stand taken by respondents,
there is no dispute that the petitioner has been discharging his
duties as an assistant teacher in the secondary section for the
period from 1996-97 till his retirement. From the academic year
2001-02, the petitioner's appointment as an assistant teacher has
been approved in the secondary section. It is only in the year
1997-98 & 2000-01 that the appointment of the petitioner was
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not approved. The petitioner has nevertheless discharged duties
as an assistant teacher even during this period. As the petitioner
has worked as an assistant teacher in the secondary section of
respondents No.1 & 2 - School during the period 1997-98 &
2000-01, the petitioner is entitled to full salary as per prescribed
pay scale.
12. As we find that there is no proper compliance
of the order dated 05/11/2001 passed by this Court in Writ
Petition No. 4399 of 2001, it is necessary in the interest of
justice to permit the petitioner to make a comprehensive
representation to the respondent No.3 for treating the period
from 1996-97 till 2000-01 for the purpose of continuity of
service. If a representation is so made, the Education Officer
may consider the said representation on its merits without being
influenced by the stand taken by them in the affidavit-in-reply
and the order dated 04/03/2002 at Exhibit 'H' page 29 of the
Writ Petition.
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13. Respondent No.3 may also examine the issue
of granting approval to the petitioner's appointment afresh for
the period for years 1997-98 & 2000-01 in the peculiar
circumstances that the petitioner has since retired so that the
period from 1996 onwards during which time he is discharging
his duties as an assistant teacher may be counted for the
purpose of continuity of service.
14. It is the primary responsibility of the respondents
No.1 & 2 to pay to the petitioner the salary of an assistant
teacher of secondary school as per prescribed pay scale for the
academic years 1997-98 & 2000-01. If after paying the amount
as directed below, an application is made by respondent No.1 for
reimbursement for the said amount from respondent No.3, the
said application may be decided on its own merits and in
accordance with law. Hence, the following order.
O R D E R
i) Respondents No.1 & 2 are directed to pay to the petitioner
salary as per prescribed pay scale for the period 1997-98
and 2000-01 along with interest @ 6% p.a. from the date
on which the same became due and payable within a
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period of 10 weeks from today.
ii) The petitioner to make a representation to respondent
No.3 for considering the period 1996-97 to 2000 -01 for
continuity of service as an assistant teacher in the
secondary school and if the petitioner chooses to make a
representation within a period of 4 weeks from today, the
respondents may decide the same in accordance with law
within a period of 8 weeks from the date of receipt of the
representation.
iii) In the event, respondents No.1 & 2 make an application to
respondent No.3 for reimbursement of the arrears of
salary paid to the petitioner, the same may be considered
on its own merit.
iv) In view of disposal of the Writ Petition, Civil Application
No.1639 of 2016 does not survive and the same also
stands disposed of accordingly.
v) No order as to costs. Rule is partly made absolute.
(M.S.KARNIK, J.) ( A.A.SAYED, J.)
