Indira Education Society, Thr Its ... vs Smt Seema Uttam Gajbhiye And 2 ...
2017 Latest Caselaw 2101 Bom

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


                   Writ Petition No.1047 of 2015


  1. Indira Education Society,
     through its Secretary,
     Pili Nadi, Kamptee Road,
     Nagpur.

  2. Dharmaraj Vidyalaya,
     Pili Nadi, Kamptee Road,
     Nagpur, through its
     Headmaster.                                   ... Petitioners


       Versus


  1. Smt. Seema Uttam Gajbhiye,
     R/o Indira Nagar,
     Kanhan, Ward No.5,
     Tq. Parshioni,
     Dist. Nagpur.

  2. Education Officer (Secondary),
     Zilla Parishad, Nagpur.

  3. Roshan s/o Sukhdeo Meshram,
     C/o Dharmaraj Vidyalaya,
     Pili Nadi, Kampteee Road,
     Nagpur.                                       ... Respondents




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  Shri A.A. Naik, Advocate for Petitioners.
  Shri A.D. Mohgaonkar, Advocate for Respondent No.1.
  Shri   M.M.   Ekre,   Assistant   Government   Pleader   for   Respondent 
  No.2.
  Shri H.A. Deshpande, Advocate for Respondent No.3.


               Coram : R.K. Deshpande, J.

Dated : 2nd May, 2017

Oral Judgment :

1. In the order dated 4-4-2017, the corrections are required

to be made in respect of the typographical errors :

(i) In the first para on page 3, the date '20.04.2007' be corrected as '22.04.2007'.

(ii) In the second para on page 3, the date '24.04.2007' be corrected as '22.04.2007'.

(iii) In the third para on page 4, the word 'found' appearing in the last line be replaced by the word 'passed'.

The corrections be made in the said order and the order

be reloaded.

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2. Rule, made returnable forthwith. Heard finally by

consent of the learned counsels appearing for the parties.

3. After hearing the learned counsels for the parties for

quite some time, this Court passed an order on 4-4-2017, which

is reproduced below :

" Issue notice for final disposal of the matter to the respondents, returnable on 18.04.2017.

Shri A.D. Mohgaonkar, the learned counsel waives service of notice for respondent No.1.

Shri M.M. Ekre, the learned Assistant Government Pleader waives service of notice for respondent No.2.

Service to the respondent No.3 by hamdast.

The husband of the respondent No.1 was working as Peon in the School run by the petitioners. He died on 22.01.2006. The respondent No.1 applied for providing employment on compassionate ground to the management on 12.04.2006. The respondent No.1 submitted her application to the Education Officer on 22.04.2007. The application was pending for consideration.

The petitioner-management applied to the Education Officer for grant of permission to advertise four vacant posts of Peon. The permission was granted and accordingly on 13.08.2009, an advertisement was issued.

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On 21.08.2009, all the four posts were filled in by making appointments. All these appointments have been approved by the Education Officer on 21.08.2009. The posts are admissible for grant-in-aid and accordingly, the salaries of all the four Peons is being released by the Education Department.

Surprisingly, on 11.02.2009 the Education Officer wrote a letter to the petitioner asking for the appointment of respondent No.1 on compassionate ground and to submit the report immediately. Accordingly, on 19.12.2009 the petitioner appointed the respondent No.1 on compassionate ground on the post of Peon. The respondent No.1 was working on the said post, till her termination on 17.07.2010. This termination was the subject-matter of challenge before the School Tribunal, which has allowed the appeal and by setting aside the order of termination, and directing reinstatement with continuity in service, but refusing to grant back-wages. The management has therefore, challenged this decision given on 18.11.2014 in Appeal No.STN-14/2012, before this Court in this writ petition.

It is not in dispute that the scheme for appointment on compassionate ground framed by Government Resolution dated 31.12.2002, was applicable to the school run by the petitioner. The respondent No.1 was eligible for appointment on compassionate ground under the scheme and had applied for it to the Management and the Education Officer on 12.04.2006 and 22.04.2007. As per clause 6A under the scheme, the Education Officer was required to maintain seniority list of the persons in the District to be absorbed on compassionate ground in the aided schools in a District. Prima facie, therefore, it was for the Education Officer who should have included the name of the respondent No.1 in the seniority list on the basis of her application dated 22.04.2007. If the

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Education Officer was of the view that the respondent No.1 was required to be absorbed in service of petitioner on compassionate ground, he should have at that time directed her to be appointed on the post, if she was found eligible for appointment on compassionate ground. This has not been done, but on the contrary the Education Officer grants permission on 13.08.2009 to the management, to fill in four vacant posts by issuing advertisement and inviting applications. The appointments are made on 18.08.2009 and the approval was granted by the Education Officer on 21.08.2009.

In the facts and circumstances of this case, firstly, the Education Officer should not have permitted the management to fill in all the four vacant posts of Peon, without considering the application dated 22.04.2007 submitted by the respondent No.1 for employment on compassionate ground. The application should have been processed as per the Government Resolution dated 31.12.2002 and only there upon the management should have been insisted upon for making the appointment of the respondent No.1 on compassionate ground. Secondly, if according to the Education Officer, the respondent No.1 was not eligible for appointment for want of post, then there was no question of insisting upon the management, by issuing letter dated 11.12.2009 to appoint her and to pay the salary. The respondent No.2-Education Officer is therefore, required to clear the mess, which he has created.

The learned AGP seeks two weeks time to file reply in the matter.

Put up this matter on 18.04.2017.

The Education Officer should file his reply before the expiry of two weeks failing; which he shall pay the costs of

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Rs.10,000/- from his own pocket. If the respondent No.1 is required to be absorbed in service, then the Education Officer is bound to release the salary admissible to the post on which she is to be appointed. In respect of four appointments of Peon, which have already been approved on 21.08.2009, the respondent No.2-Education Officer shall take his decision on its own merits and in the absence of those employees before this Court, no order affecting their interest can be passed.

The School Tribunal has granted reinstatement to the respondent No.1 in service. The petitioners are therefore, required to implement this order forthwith and submit her regular salary bills to the Education Officer for sanction.

Steno copy of this order be furnished to the learned AGP to act upon."

Thereafter, this Court passed an order on 25-4-2017,

which is also reproduced below :

" The Deputy Director of Education, Nagpur Region, Nagpur and the Education Officer (Secondary) Zilla Parishad, Nagpur, to personally remain present before this Court on 27.04.2017, so as to explain as to what steps can be taken to absorb the respondent No.1 in service as peon on grant-in-aid basis.

The explanation which the Education Officer has furnished in the affidavit is totally unsatisfactory. It does not explain as to what the Education Officer has done about the application dated 22.04.2007 submitted by the

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respondent No.1. The Education Officer is trying to blame the management for suppressing the fact that the respondent No.1 had made an application on 12.04.2006 to the management for providing employment on compassionate ground.

The learned AGP to communicate this order.

Put up this matter on 27.04.2017.

LATER ON

The learned Assistant Government Pleader Shri M.M. Ekre request for posting the matter on 2nd May, 2017, for the reason that the Deputy Director of Education has a meeting to attend at Pune.

Hence, put up this matter on 2nd May, 2017."

No doubt, the Deputy Director of Education is not party

to this petition. However, he being the superior officer of the

Education Officer (Secondary), who is party to this petition, he

was called by this Court to find out the way in which the mess

created by the Education Officer can be cleared, and this was

made clear in the order dated 25-4-2017.

4. Today, in the morning hours, the matter was called out

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and it was reported that the Deputy Director of Education,

Nagpur Region, Nagpur, Shri Anil Pardhi, was present before this

Court along with the Education Officer (Secondary), Zilla

Parishad, Nagpur, Shri Satish Mendhe. In their presence, the

learned Assistant Government Pleader agreed to file an

undertaking before this Court that the approval to the

appointment of the respondent No.1 shall be granted on the post

of Peon with effect from 21-12-2009, when the Management

permitted the respondent No.1 to join the School as Peon as per

the direction of the Education Officer and the regular salary on

the said post shall be released by the respondent No.2-Education

Officer (Secondary), Zilla Parishad, Nagpur.

5. When the matter is called out in the afternoon session, it

is informed that the Deputy Director of Education, Nagpur

Region, Nagpur, has left the Court and has gone back to his

office. As a result, this Court is at loss to know, how the mess

can be sorted out at the administrative level. This is an attitude

of non-cooperation and nothing prevented the Deputy Director of

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Education to inform the Court to pass an order on merits, if does

not want to take risk. A reply, which is yet to be sworn, has been

handed over to this Court across the Bench, restating the stand

which was already taken by the respondent No.2-Education

Officer (Secondary), Zilla Parishad, Nagpur.

6. It is surprising as to how the Deputy Director of

Education has left this Court without seeking prior permission.

It amounts to showing disrespect to the Court. Instead of filing

an undertaking, a reply is being filed opposing the reliefs claimed

in this petition. This Court has already adjudicated that the

Education Officer should not have permitted the Management to

fill in all the four vacant posts of Peon without considering the

application dated 22-4-2007 submitted by the respondent No.1

for employment on compassionate ground. This application was

required to be processed as per the Government Resolution dated

31-12-2002, but instead of doing that, the Education Officer

permitted the Management to fill in all the four vacant posts of

Peon by making a direct recruitment. It is not the stand of the

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Education Officer that the respondent No.1 was not eligible for

appointment to the said post. Subsequently, on 11-12-2009, the

Education Officer insisted upon the Management to appoint the

respondent No.1 on the post of Peon and to pay her salary. It is

the Education Officer, who has to be completely blamed for this

situation. The School Tribunal has refused to grant back wages.

7. The respondent No.1 has been reinstated in service on

the post of Peon with effect from 29-4-2017 and she is working

on the post. In view of above, the judgment and order

dated 18-11-2014 passed by the School Tribunal, Nagpur, in

Appeal No.STN-14/2012 is modified as under :

(i) The order of termination of the respondent No.1-

Smt. Seema Uttam Gajbhiye, dated 17-7-2010, is quashed and set aside.

(ii) The respondent No.1 is already reinstated in service on 29-4-2017. She shall be granted continuity in service.

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(iii) The petitioners shall prepare within a period of one month from today the salary bills of the respondent No.1 with effect from 18-11-2014, i.e. the date of order of reinstatement passed by the School Tribunal, and shall forward the same to the respondent No.2-Education Officer for sanction. The respondent No.2-Education Officer shall accord his approval and release the salary bills of the respondent No.1 forwarded by the petitioners.

(iv) The respondent No.2-Education Officer shall continue to release the salary grants for the post occupied by the respondent No.1.

(v) The Deputy Director of Education, Nagpur Region, Nagpur, shall deposit the costs of Rs.10,000/- from his own pocket, with the High Court Legal Services Sub-Committee, Nagpur, within a period of eight days from today, for leaving this Court without obtaining prior permission.

(vi) The respondent No.2-Education Officer shall pay the costs of Rs.25,000/- as litigation charges to

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the respondent No.1 from the State exchequer.

(vii) It is reported that as a result of reinstatement of the respondent No.1 in service on the post of Peon, one of the four persons, already is appointed on the posts of Peon, shall have to be declared as surplus. The respondent No.2- Education Officer shall hear all the four appointees and the Management and thereafter shall pass an appropriate order.

(viii) The respondent No.2-Education Officer, upon receipt of the salary bills in respect of the respondent No.1, shall accord his sanction and release the arrears of salary within a period of fifteen days from the date of receipt of proposal.

8. Rule accordingly. No order as to costs.

9. Put up this matter on 19-6-2017 to find out the

compliance.

JUDGE.

Lanjewar