Bombay High Court
Nagesh Sadashivrao Deshpande & ... vs Swami Vivekanand Shikshan ... on 21 June, 2017
Bench: T.V. Nalawade
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.1023 OF 2006
1. Nagesh s/o Sadashivrao Deshpande,
Age : 42 years, Occu.: Service,
Junior Clerk, Prabhavati Primary
School, Parbhani,
District Parbhani
2. Shrihari s/o Janardan Katkade,
Age : 38 years, Occu.: Service,
Peon, Prabhavati Primary School,
Parbhani, District Parbhani PETITIONERS
VERSUS
1. Swami Vivekanand Shikshan Sanstha,
Vidyanagar, Parbhani, through its
Secretary/Fit Person
2. The Head Mistress,
Prabhavati Primary School,
Vidyanagar, Parbhani,
District Parbhani
3. The Education Officer (Primary),
Zilla Parishad, Parbhani,
District Parbhani RESPONDENTS
----
Mr.S.B. Ghatol Patil, Advocate for the petitioners
None for respondent Nos.1 and 2, though served
Mr.B.A. Shinde, Advocate for respondent No.3
----
CORAM : T.V.NALAWADE AND
SANGITRAO S.PATIL, JJ.
DATE : 21st JUNE, 2017
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JUDGMENT - (PER : SANGITRAO S. PATIL, J) :
The petitioners, who were appointed as
Junior Clerk and Peon respectively, in respondent
No.1 - School, have prayed for the following
reliefs.
"[B] By a writ of mandamus, or any
other appropriate writ, or order or
direction in the like nature, the
respondents may kindly be directed to
correct the service records/service-books
of the petitioners by taking into
consideration their actual dates of
appointment and approvals granted by the
Education Officer to those appointments.
[C] By a writ of mandamus, or any
other appropriate writ, or order or
direction in the like nature, the
respondent No. 3 may kindly be directed to
grant benefit of senior scale to the
petitioners by taking into consideration
their twelve years' service from the
actual dates of their respective
appointments which are already approved by
the Education Officer.
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[D] By a writ of mandamus, or any
other appropriate writ, or order or
directions in the like nature, the
Education Officer (Primary), Zilla
Parishad, Parbhani - respondent No.3 may
kindly be directed to take steps to absorb
the petitioners in any other aided school
or the school run by the Zilla Parishad as
per the provisions of Rule 26 of the
Maharashtra Employees of Private Schools
(Conditions of Service) Rules, 1981.
[E] By a writ of certiorari, or any
other appropriate writ or order or
directions in the like nature, the orders
of recovery from the salaries of the
petitioners already effected on an
erroneous assumption about the date of
appointments of the petitioners may kindly
be quashed as set aside."
2. Heard the learned counsel for the petitioners
and the learned counsel for respondent No.3- Education
Officer.
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3. The petitioners have produced their
appointment orders for the posts of Junior Clerk and
Peon respectively, on which they actually resumed on
15th June, 1985 and 11th June, 1987 respectively. The
then Education Officer (Primary) seems to have granted
approval to the appointments of the petitioners as per
the communication dated 14th January, 1992 with effect
from the above mentioned dates of joining the duties.
On the basis of these documents, the learned counsel
for the petitioners submits that they are entitled to
get reliefs claimed in prayer clauses "B" and "C"
above.
4. On the other hand, the learned counsel for
respondent No.3 produced the documents and
particularly the letter dated 30 th September, 1987
issued by the Government of Maharashtra, whereunder
permission was granted to run respondent No.1 -
School. On the strength of these documents, the
learned counsel for respondent No. 3 submits that when
respondent - school got recognition on 30 th September,
1987, there was no question of appointing the
petitioners as clerk and peon on 15th June, 1985 and
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11th June, 1987 respectively. We find substance in this
contention. There was a palpable mistake on the part
of the then Education Officer (Primary) in giving
approval to the appointments of the petitioners from
15th June, 1985 and 11th June, 1987 respectively, when
respondent No.1- School itself had not got recognition
from the Government of Maharashtra.
5. The learned counsel for respondent No.3
pointed out to Clause (b) of sub-rule (3) of Rule 115
of the Bombay Primary Education Rules, 1949, which
reads as under:-
"Salaries of one Junior Clerk and one Class
IV servant in the approved pay-scale
applicable to similar employees in the
service of the State Government in case of
school having strength of 500 or more."
6. The learned counsel for respondent No.3
pointed out to the letter dated 4th October, 1991
issued by the then Education Officer (Primary)
extending sanction to staffing pattern of respondent
No.1-school for the year 1990-91. In that year, the
strength of the students was 467 only and therefore,
the posts of Junior Clerk and Peon were not
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sanctioned. He further referred to the letter dated
14th January, 1992 showing that the strength of the
respondent No.1 - School was 508 in that year and,
therefore, one post of Junior Clerk and one post of
Peon came to be sanctioned for the first time in the
year 1991-92. He, therefore, submits that the approval
to the appointments of the petitioners was rightly
granted by respondent No.3 from the year 1991-92 and
necessary entries in the service record of the
petitioners have rightly been taken accordingly. He
further submits that the benefit of the time bound
promotion has also been rightly extended to the
petitioners after completion of the service of twelve
years from the year 1991-92, treating their
appointments with effect from 1st June, 1991.
7. The learned counsel for the petitioners
submits that the petitioner actually served with the
respondent No.1-School from the years 1985 and 1987
respectively. However, they have not been paid salary
till the year 1991-92 when respondent No.3 treated
them on duty for the purpose of salary. As stated
above, the appointments of the petitioners can be
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considered to be valid for the purpose of payment of
salary only after the posts of Junior Clerk and Peon
were sanctioned as per the letter dated 14th January,
1992 for the academic year 1991-92. Therefore, the
petitioners are not entitled to claim the salary from
respondent No.3 in respect of the period prior to
sanction of the said posts. If the petitioners have
worked for respondent No.1-school, they would be at
liberty to claim salary, if permissible under the law,
in respect of the period prior to sanction of the
posts. However, they are not entitled to get the
salary or any other benefit in respect of the period
prior to sanction of the posts to which were
appointed.
8. In the circumstances, entries in the service
record of the petitioners cannot be said to have been
taken wrongly as claimed by the petitioners. There is
absolutely no reason to direct the respondents to
carry out any correction in the service record of the
petitioners. The petitioners are not entitled to get
the time bound promotional pay scale from the years
1985 and 1987 respectively as claimed by them.
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9. The learned counsel for the petitioners
submits that the petitioners have been appointed after
following due procedure of law. Their appointments
have been approved by respondent No.3. Therefore, in
case respondent No.3 is of the opinion that the
petitioners are surplus in respondent No.1-school,
respondent No.3 may be directed to absorb them in some
other aided school. Indeed, the appointments of the
petitioners have been approved and they have been
extended even the benefit of time bound promotional
pay scale. In case they are found to be surplus,
respondent No.3 would have to declare them as surplus
and absorb them in some other aided school. To this
extent, we accept the claim of the petitioners.
10. The learned counsel for the petitioners
submits that respondent No.3 have wrongly recovered
certain amounts from the salary of the petitioners on
account of excessive payment made to them towards time
bound promotional scale wrongly sanctioned to them. It
is prayed that the amounts recovered from the salary
of the petitioners may be directed to be repaid to
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them. We are not inclined to accept this contention.
The respondents have rightly recovered the excess
payment of salary made to the petitioners, since the
petitioners were not legitimately entitled to get that
amount.
11. The writ petition is liable to be dismissed.
However, we make it clear that if it is permissible
under the law to claim past salary from the respondent
-School, the petitioners would be at liberty to
initiate appropriate proceedings for recovery of the
same. We further make it clear that in case the
petitioners are found to be surplus, respondent No.3
shall consider them for being absorbed in some other
aided school as per the provisions of law. With these
observations, we dismiss the writ petition. No costs.
Rule is discharged accordingly.
Sd/- Sd/-
[SANGITRAO S. PATIL] [T.V. NALAWADE]
JUDGE JUDGE
sam/wp1023-2006
