Bombay High Court
Uttam Vithal Vaidya vs The State Of Maharashtra And ... on 20 March, 2017
Bench: R.M. Borde
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 11367 OF 2014
Uttam Vithal Vaidya
age 42 years, occ. Service
as an Assistant Teacher,
Vidyasagar Vidyala
Khanapur (Chita)
Tq. & Dist Higoli Petitioner
Versus
1. The State of Maharashtra
Through its Secretary
School and Edcuation Department
Mantralaya, Mumbai
2. The Education Officer
(Secondary), Zilla Parishad,
Tq. & dist. Hingoli
3. The Head Master
Vidyasagar Vidyalaya
Khanapur(Chita)
Tq. & Dist. Hingoli
4. The President,
Shri Gajanan Shikshan Prasarak
Mandal, Respondents
Mr. S.R. Kolhare, advocate for the petitioner.
Ms. R.P. Gour, A.G.P. for Respondent no. 1.
Mr. D.M. Shinde, advocate for respondents 3 and 4.
CORAM : R.M.BORDE &
P. R. BORA, JJ.
DATE : 20th MARCH, 2017
ORAL JUDGMENT: ( PER R. M. BORDE, J. )
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1. Rule. Rule made returnable forthwith.
2. Heard finally with the consent of learned counsel for the
respective parties.
3. Petitioner belongs to Nomadic Tribe category and was
appointed as Assistant Teacher in the secondary school operated
by respondents 3 and 4. Service of the petitioner came to be
terminated on 15th December, 1997. Petitioner, being aggrieved by
the order of termination, preferred appeal, which was allowed on
12th December, 2000 and, the order of termination came to be set
aside. Respondent-management was directed to re-instate the
petitioner with backwages. The order passed by the school
tribunal was a matter of challenge at the instance of management
in Writ Petition No. 305/2001. According to management, after
presentation of the petition, the order impugned passed by the
school tribunal was directed to be stayed by the High Court. The
writ petition was allowed on 3rd July, 2014. The order in respect of
payment of backwages issued by the tribunal was set aside and the
management was directed to re-instate the petitioner in
employment. While disposing of the petition, the management was
not directed to pay wages during the pendency of the petition since
the order was stayed and the petitioner was not admittedly in
employment of the school operated by respondent-management.
The petitioner, as such, in any case, is not entitled to claim
backwages and shall be entitled to claim wages from the date of
re-instatement in pursuance to the judgment of the High Court.
4. Petitioner contends that immediately after his
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re-instatement, he has been declared surplus, which order,
according to petitioner is illegal. Petitioner belongs to Nomadic
Tribe category and there is a backlog in respect of the aforesaid
category and, in view of the policy laid down by the State
Government, the petitioner ought not to have been declared as
surplus employee.
5. Learned counsel appearing for respondent contends that at
the time of induction of petitioner in employment, he did not
possess requisite qualification however, he acquired the
qualification by pursuing postal B.Ed. course in the year 2004.
Seniority of the petitioner shall have to be considered since the
date of acquisition of qualification and not from the date of his
initial appointment. The contention raised by respondent appears
to be sound and in consonance with the Full Bench judgment of
this Court in the matter of Vaijanath s/o Tatyarao Shinde Vs.
Secretary, Marathwada Shikshan Prasarak Mandal, Devgiri College
Campus, Aurangabad and others reported in 2006(6) Mh.L.J.
682.
6. Another contention raised by petitioner that since he is a
candidate belonging to Nomadic Tribe category, he cannot be
declared as surplus, deserves consideration. Apart from this
aspect, seniority of petitioner from the date of acquisition of
qualification also deserves to be considered and since he has
acquired training qualification in the year 2004, his placement in
the seniority list shall have to be on the basis of the date of
acquisition of training qualification. The issue in respect of
placement of petitioner in the seniority list as well as subsequent
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order of declaration of petitioner as surplus by management
deserves to be considered by the Education Officer.
7. It would be open for the petitioner to tender representation to
the Education Officer (Secondary). If petitioner tenders
representation within a period of 15 days from today, the
Education Officer (Secondary) shall deal with the representation
and pass appropriate order after extending an opportunity of
hearing to petitioner and the educational institution, as
expeditiously as possible, preferably within a period of 8 weeks
from the date of tendering of representation. The Education
Officer shall consider the issue as regards fulfilment of reservation
quota by the institution as well as the issue as to whether
petitioner who belongs to Nomadic Tribe category can be declared
as surplus when the vacancy for the prescribed category exists.
The Education Officer is also expected to consider the seniority of
petitioner from the date of acquisition of training qualification and
shall pass appropriate order. Rule made absolute to the extent
specified above. No costs.
( P. R. BORA ) ( R.M.BORDE )
JUDGE JUDGE
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