The Education Officer ... vs Anuradha Bhimrao Wakure & Ors
2017 Latest Caselaw 3510 Bom

                                           1
                                                              910.WP.5010-04.doc




        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                CIVIL APPELLATE JURISDICTION

                       Writ Petition NO. 5010 OF 2004

The Education Officer (Secondary),
Zilla Parishad Solapur                                       ...Petitioner
           Versus
Anuradha Bhimrao Wakure & Ors.                               ...Respondents

                                ....
Ms. M.S. Bane, B Panel Counsel for the Petitioner.
Mr. Pramod N. Patil, Advocate for Respondent No.1.
Mr. Pratap Patil, Advocate for Respondents No.2 and 3.
                                ....

                               CORAM :   R. G. KETKAR, J.

                               DATE     :  22nd JUNE, 2017   
JUDGMENT :

1. Heard Ms. M.S. Bane, learned A.G.P. for the petitioner,

Mr. Pramod Patil, learned Counsel for respondent No.1 and

Mr.Pratap Patil, learned Counsel for respondents No.2 and 3, at

length.

2. By this Petition under Article 227 of the Constitution of

India, the petitioner has challenged (1) judgment and order dated

18.8.1998 in Appeal No.140/1995, (2) order dated 14.8.2002 and

(3) order dated 18.10.2003 in Misc. Application No.45/2003

passed by the learned Presiding Officer, Additional School

910.WP.5010-04.doc

Tribunal, Pune Region, Solapur (for short, 'Tribunal'). By order

dated 18.8.1998, the Tribunal set aside oral termination order

dated 18.9.1995 and directed reinstatement of the first

respondent to the post of Assistant Teacher since the date of

termination dated 18.9.1995 and directed the petitioner to pay

the back-wages to the first respondent. By order dated

14.8.2002, the Tribunal directed the petitioner to draw the

arrears of back-wages and pay the same to the first respondent

within a period of one month from the date of order dated

18.8.1998 failing which action will be taken against the

petitioner. By order dated 18.10.2003, the Tribunal directed

execution of the orders as if it were decree passed by the Civil

Court. The relevant and material facts giving rise to filing of this

Petition, briefly stated, are as under.

3. Respondent No.1 instituted Appeal No.140/1995 before

the Tribunal under Section 9 of the Act inter alia contending

that she had completed M.Sc. in the year 1992 and B.Ed. in the

year 1993. She is eligible and qualified for appointment on the

post of Assistant Teacher. It is her case that respondents No.2

and 3, hereinafter referred to as 'Management', had issued

advertisement on 4.5.1993. She applied on 22.5.1993. She was

910.WP.5010-04.doc

interviewed and was found suitable and qualified. She was

issued appointment order on 22.6.1993. She was appointed on

probation for a period of two years in a clear and permanent

vacant post as Assistant Teacher. She was appointed from Open

category. The petitioner gave approval to her appointment on

19/21.3.1993. Though first respondent was appointed on

probation for a period of two years, the Management issued

advertisement on 6.5.1994 inviting applications for various posts

including the post on which first respondent was appointed.

Respondent No.1 applied for the said post on 16.6.1994. She

was interviewed and as she was qualified and eligible, she was

selected. She was appointed on probation for a period of two

years by appointment order dated 16.6.1994. Though the work

of first respondent was satisfactory, all of a sudden from

18.9.1995 she was not allowed to sign the attendance muster

maintained by the Management. She was orally informed that

her services are terminated on 18.9.1995. Respondent No.1,

therefore, preferred appeal under Section 9(1)(a) of the Act

challenging otherwise termination of her services.

4. The Management filed written statement at Exhibit-7

resisting the appeal. The Management admitted in paragraph-10

910.WP.5010-04.doc

of the written statement that first respondent was appointed on

probation for a period of two years. The Management denied that

the work and behaviour of first respondent was satisfactory and

that the post held by first respondent was vacant and it was

contended that one Mr.N.S. Koli who belongs to S.T. category

has been appointed to the post held by the first respondent. The

Management also contended that appeal preferred by first

respondent was time barred.

5. The petitioner, who was respondent No.3, filed written

statement inter alia contending that there was back log of three

Scheduled Tribe candidates in the school run by the

Management. Appointment of respondent No.1 made by the

Management on probation for a period of two years was,

therefore, contrary to law. As the post was reserved for S.T.

category, the Management ought to have made appointments

subject to the production of no-objection certificate of Social

Welfare Officer and Employment Exchange. In case of non-

availability of backward class candidates, the appointment

should be on year to year basis for five years as per Rule 9(9)(a)

of the Maharashtra Employees of Private School (Condition of

Service) Rules, 1981 (for short, 'Rules'). The petitioner, therefore,

910.WP.5010-04.doc

prayed for dismissal of the appeal.

6. By the impugned order dated 18.8.1998, the Tribunal

allowed the appeal and set aside the oral termination order dated

18.9.1995. The Tribunal directed reinstatement of first

respondent to the post of Assistant Teacher since the date of

termination dated 18.9.1995 and directed the petitioner to pay

back-wages to first respondent.

7. By order dated 14.8.2002, the petitioner is directed to

draw the arrears of back-wages and to pay the same to first

respondent within a period of one month from the date of the

order dated 18.8.1998, failing which action will be taken against

the petitioner.

8. By order dated 18.10.2003, the Tribunal directed

execution of the orders as if it is a decree passed by the Civil

Court. It is against these orders, the Petition is instituted.

9. In support of this Petition, Ms.Bane has reiterated the

contentions advanced before the Tribunal. She submitted that

there was back log of Scheduled Tribe category. Instead of

filling-up the back log from Scheduled Tribe category, the

Management appointed first respondent who is from Open

910.WP.5010-04.doc

category. The Management committed error in appointing first

respondent on probation for a period of two years. The

Management while issuing appointment order acted contrary to

Rule 9(9)(a) of the Rules. The Tribunal was, therefore, not

justified in ordering reinstatement. She further invited my

attention to paragraph-20 of the order dated 18.8.1998. In that

paragraph, the Tribunal recorded oral submission advanced by

the Secretary of the Management that Government may be

directed to pay salary of first respondent because Education

Officer does not approve her salary. The Tribunal observed that if

the school is recognized and it is aided, the Government must

pay salary of the teacher. She submitted that said finding is

totally unsustainable. She further submitted that the

Government should not be saddled with payment of salary of the

first respondent on account of mistake committed by the

Management. She submitted that the petition deserves to be

allowed thereby setting aside the impugned orders.

10. On the other hand Mr. Pramod Patil supported the

impugned orders. He submitted that after following the

procedure for appointment, the Management had appointed first

respondent on probation for a period of two years. First

910.WP.5010-04.doc

respondent was appointed on a clear, vacant and permanent

post. He submitted that as the post was not reserved for

backward class candidate, there was no question of obtaining

no-objection certificate from the Social Welfare Officer and

Employment Exchange. The Management was justified in

appointing first respondent on probation for a period of two years

and could not have appointed her on temporary basis that too for

year to year. He further submitted that the first respondent gives

up her claim for back-wages. Mr. Pratap Patil supported the

direction issued by the Tribunal to the petitioner as regards

payment of back-wages.

11. I have considered the rival submissions advanced by

learned Counsel appearing for the parties. I have also perused

the material on record. A perusal of the order dated 18.8.1998

passed by the Tribunal shows that the Tribunal has considered

the fact that first respondent is qualified as M.Sc. B.Ed. The

Management had invited applications on 4.5.1993. In pursuance

thereof, first respondent applied on 22.5.1993. She was

interviewed and was found qualified for appointment on the post

of Assistant Teacher. She was selected by the Interviewing

Committee and the order of her appointment was issued on

910.WP.5010-04.doc

22.6.1995. In paragraph-15, the Tribunal observed that the first

respondent was appointed as Assistant Teacher on 22.6.1993

for a period of two years. The petitioner approved her

appointment upto 31.3.1994. In my opinion, once first

respondent was appointed on probation for a period of two years,

the petitioner herein could not have issued letter of approval of

her appointment upto 31.3.1994. It was further observed that

the appointment of the first respondent was on the permanent

post against clear vacancy and was in open category. The

Tribunal also referred to Section 5(3) of the Act and also Rules

and observed that there were no complaints about the behaviour

and work of first respondent and no material is produced by the

Management to establish that the work and behaviour of first

respondent was not satisfactory. Even one month's salary was

not paid to the first respondent in lieu of notice. For the reasons

recorded in paragraphs-15 to 19, I do not find that the Tribunal

committed any error in passing order dated 18.8.1998. Insofar as

the direction against the petitioner to pay back-wages is

concerned, Mr. Pramod Patil fairly stated that first respondent is

not claiming back-wages. In view thereof, Petition is disposed of

in following terms:

910.WP.5010-04.doc

(i) Petition is partly allowed.

(ii) The oral termination order dated 18.9.1995 passed

against the first respondent is set aside. Respondent

No.1 is reinstated to the post of Assistant Teacher since

the date of her termination on 18.9.1995 with

continuity of service and all consequential benefits

except back-wages.

(iii) Rule is partly made absolute in aforesaid terms with no

order as to costs. Order accordingly.

(R. G. KETKAR, J.)

Deshmane (PS)